North Carolina State Board of Education v. Swann Statement as to Jurisdiction
Public Court Documents
January 1, 1970
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In The
Supreme Court of the United States
OCTOBER TERM , 1970
No________
NORTH CAROLINA STATE BOARD OF EDUCATION;
DR. A. CRAIG PHILLIPS, Superintendent of Public Instruc
tion; HONORABLE ROBERT W. SCOTT, Governor of the
State of North Carolina; HONORABLE A. C. DAVIS. Con
troller of the State Board of Education; HONORABLE W IL
LIAM K. McLEAN, Judge of the Superior Court of Meck
lenburg County, et ah,
Appellants,
v.
JAMES E. SWANN, et al.,
Appellees.
APPEAL FROM THE DISTRICT COURT OF THE
UNITED STATES FOR THE WESTERN DISTRICT
OF NORTH CAROLINA
STATEMENT AS TO JURISDICTION
ROBERT B. MORGAN
Attorney General of the
State of North Carolina
Ralph Moody
Deputy Attorney General of the
State of North Carolina
Andrew A. Vanore, Jr.
Assistant Attorney General of the
State of North Carolina
P. O. Box 629
Justice Building
Raleigh, North Carolina 27602
Telephone: 829-3377
INDEX
STATEMENT AS TO JURISDICTION......................................... 1
OPINION BELOW .......................................................................... 1
JURISDICTION ................................................................................ 2
QUESTIONS PRESENTED ........................................................... 4
STATUTES AND CONSTITUTIONAL PROVISIONS
INVOLVED ................................................................................ 4
CONCLUSION ................................................. 13
TABLE OF CASES
Alexander v. Holmes County Board of Education,
396 U. S. 19, 90 S. Ct. 29 ........................................................ 10
Atlantic Coastline Railroad v. Brotherhood of Locomotive
Engineers, No. 477, October Term, 1969, Opinion filed
June 8, 1970 .............................................................................. 13
Bell v. School City of Gary, Indiana, 324 F. 2d 209, cert.
den. 377 U. S. 924 .................................................................. 8
Blue v. Durham Public School District, 95 F. Supp. 441 .......... 12
Board of Education of Oklahoma City Public Schools v.
Dowell, 375 F. 2d 158, cert. den. 387 U. S. 931 .................. 8
Board of Public Instruction of Duval County, Florida,
v. Braxton, 402 F. 2d 900 ....................................................... 8
Brown v. Board of Education, 347 U. S. 483, 74 S. Ct. 686,
98 L. ed. 873 ............................................................................. 7
Brown v. Board of Education of Topeka, 349 U. S. 294,
99 L. ed. 1083, 75 S. Ct. 753 ..................................................... 7
Brown v. Charlotte-Mecklenburg Board of Education,
267 N. C. 740, 743, 149 S. E. 2d 10 ....................................... 11
Bradley v. School Board of Richmond, 345 F. 2d 310,
315, 316 ..................................................................................... 7
i
Constantian v. Anson County, 244 N, C. 221, 93 S. E. 2d 163 .... 12
Covington v. Edwards, 264 F. 2d 780 (CCA-4) .......................... 13
Deal v. Cincinnati Board of Education, 369 F. 2d 55,
cert. den. 389 U. S. 847 ........................................................... 8
Department of Employment v. United States, 385 U. S. 355,
87 S. Ct. 464, 17 L. ed. 2d 414 ................................................ 3
Dilday v. Board of Education, 267 N. C. 438, 148
S. E. 2d 513 .............................................................................. 12
Down v. Board of Education of Kansas City, 336 F. 2d
988, cert. den. 380 U. S. 914 ................................................. 8
Florida Lime & Avocado Growers, Inc. v. Jacobsen,
362 U. S. 73, 8 S. Ct. 568, 4 L. ed. 2d 568 .......................... 2
Grave v. Board of Education of North Little Rock, Arkansas,
School District, 299 F. Supp. 843 ........................................... 8
Huff v. Board of Education, 259 N. C. 75, 130 S. E. 2d 26 ........ 11
In Re Hays, 261 N. C. 616, 135 S. E. 2d 645 ................................ 12
Jeffers v. Whitley, 165 F. Supp. 951 ............................................. 13
McKissick v. Durham City Board of Education,
176 F. Supp. 3 ........................................................................ 13
Mitchell v. Donovan, No. 726, October Term, 1969,
Opinion filed June 15, 1970 ................................................... 13
Northcross v. Board of Education of Memphis,
_____U. S---------- - 25 L. ed. 2d 246, 90 S. Ct........... ................ 10
Palmetto Fire Insurance Company v. Conn, 272 U. S. 205,
47 S. Ct. 88, 71 L. ed. 243 ....................................................... 3
Sparrow v. Gill, 304 F. Supp. 86 ................................................. 11
United States v. Jefferson County Board of Education,
372 F. 2d 836, 879 .................................................................. 8
Zemel v. Rusk, 381 U. S. 1, 85 S. Ct. 1271, 14 L. ed. 2d 179 ....... 3
ii
STATUTES
General Statutes of North Carolina, §115-176.1 .............. 2, 3, 4, 5
General Statutes of North Carolina, §115-180 .......................... 10
General Statutes of North Carolina, §115-181 .......................... 11
General Statutes of North Carolina, Chapter 115, Article 22
28 USC 1253 ............................................................... 2
42 USC 2000c ................................................................................. 5, 6
42 USC 2000C-6 ....................... 5
APPENDIX ....................................................................................... 14
FINAL JUDGMENT ........................................................................ 15
OPINION OF 3-JUDGE COURT .................................................. 16
DESIGNATION OF 3-JUDGE COURT ..................................... 30
NOTIFICATION AND REQUEST FOR DESIGNATION
OF 3-JUDGE COURT ......... 32
SUPPLEMENTAL COMPLAINT .................................................. 36
ORDER TO ADD DEFENDANTS AND TO FILE
SUPPLEMENTAL COMPLAINT ......................................... 50
MOTION FOR SUPPLEMENTAL COMPLAINT AND
ADDITIONAL DEFENDANTS ............................................. 51
ANSWER TO SUPPLEMENTAL COMPLAINT ........................ 55
MOTION FOR FURTHER RELIEF AND ADDITIONAL
DEFENDANTS ........................................................................ 59
ORDER ALLOWING ADDITIONAL DEFENDANTS .............. 65
ANSWER TO MOTION TO ADD ADDITIONAL
DEFENDANTS AND FOR FURTHER RELIEF .............. 69
DEPOSITION OF JAMES H. CARSON, JR................................ 76
iii
In The
Supreme Court of the United States
OCTOBER TERM , 1970
No.
NORTH CAROLINA STATE BOARD OF EDUCATION;
DR. A. CRAIG PHILLIPS, Superintendent of Public Instruc
tion; HONORABLE ROBERT W. SCOTT, Governor of the
State of North Carolina; HONORABLE A. C. DAVIS, Con
troller of the State Board of Education; HONORABLE W IL
LIAM K. McLEAN, Judge of the Superior Court of Meck
lenburg County, et ah,
Appellants,
v.
JAMES E. SWANN, et ah,
Appellees.
APPEAL FROM THE DISTRICT COURT OF THE
UNITED STATES FOR THE WESTERN DISTRICT
OF NORTH CAROLINA
STATEMENT AS TO JURISDICTION
The appellants, pursuant to United States Supreme Court
Rules 13 and 15, file this statement as to jurisdiction, setting
forth the basis upon which it is contended that the Supreme
Court of the United States has jurisdiction on a direct appeal
from an opinion and judgment of a 3-judge federal court to
review the final judgment in question, and, further, that this
Court should exercise such jurisdiction in this case.
OPINION BELOW
The 3-Judge Federal District Court for the Western Dis
trict of North Carolina filed its written opinion on April 29,
1970; this opinion is not yet reported. A copy of the opinion
is attached to the Jurisdictional Statement and appears on
p. 16 of the Appendix attached hereto.
2
JURISDICTION
The appeal herein is from a judgment decided by a 8-
judge federal court organized in the Western District of North
Carolina and filed in the Office of the Clerk of the Court for
the Western District of North Carolina on June 22, 1970,
the same being a final judgment. In this judgment the 3-
Judge Federal Court held unconstitutional and invalid a por
tion of a statute of North Carolina (Section 115-176.1 of
the General Statutes of North Carolina-—1969 Cumulative
Supplement to Volume 3A) which said portion reads as
follows:
“No student shall be assigned or compelled to attend
any school on account of race, creed, color or national
origin, or for the purpose of creating balance or ratio
of race, religion or national origins. Involuntary busing
of students in contravention of this article is prohibited,
and pubilc funds shall not be used for any such busing.”
The 3-Judge Federal District Court further held that except
for the portion above quoted the State statute was con
stitutional and valid.
The complete statute appears on p. 19 of the Appendix
attached hereto.
The final judgment signed by the 3-Judge Federal Court
declaring this portion of the State statute unconstitutional
and restraining any action to enforce same on the part of
the appellants is set forth on p. 15 of the Appendix attached
hereto.
The Supreme Court of the United States has jurisdiction
to review by direct appeal the opinion and judgment of the
3-Judge District Court of the United States herein complained
of by virtue of the provisions of 28 USC 1253. This is also
a question that arises under the provisions of the Constitution
of the United States.
The following decisions sustain the jurisdiction of the Su
preme Court of the United States to review this opinion and
judgment on direct appeal in this case: FLORIDA LIME &
3
AVOCADO GROWERS, INC. v. JACOBSEN, 362 U. S. 73,
8 S. Ct. 568, 4 L„ ed. 2d 568; ZEMEL v. RUSK, 381 U. C. 1, 85
S. Ct. 1271, 14 L. ed. 2d 179; PALMETTO FIRE INS. CO. v.
CONN, 272 U. S. 205, 47 S. Ct. 88, 71 L. ed. 243; DEPART
M ENT OF EM PLOYMENT v. UNITED STATES, 385 U. S.
355, 87 S. Ct. 464, 17 L. ed. 2d 414.
It is to be noted that the 3-Judge Federal Court granted an
injunction against all of the State officers restraining them
from carrying out the provisions of the statute above cited.
This would seem to bring the case directly in line with the
decisions where this Court will take jurisdiction and hear
such an appeal.
It should be emphasized that the appellants do not ques
tion the organization of the 3-Judge Federal Court. The ap
pellants concede that the constitutionality of the State statute
was a proper case which requires a 3-judge court to pass upon
the constitutional and injunctive issue. It is further conceded
that the 3-Judge Federal Court was properly organized under
a proper order, and, therefore, the jurisdiction of the 3-Judge
Court to hear the case is not questioned.
The portion of Sec. 115-176.1 (1969 Supplement to Vol
ume 3A) of the statutes of North Carolina declared to be
unconstitutional consists of two sentences in said statute which
we again quote, as follows:
“ No student shall be assigned or compelled to attend any
school on account of race, creed, color or national origin,
or for the purpose of creating balance or ratio of race,
religion or national origins. Involuntary busing of students
in contravention of this article is prohibited, and public
funds shall not be used for such busing.”
The 3-Judge Federal Court construed these two sentences
to mean that they prohibited assignment by race and would
prevent school boards from altering existing dual systems. Ap
parently the Court construed the word “ balance” as prohi
biting a school board from establishing the so-called Unitary
System, and the Court said this violated the equal protection
clause of the Fourteenth Amendment. Aside from the con
stitutional implications involved in the statute, we think the
Court has incorrectly construed the language of the statute
since the 3-Judge Court evidently thought that the language
substantially prohibited all busing.
QUESTIONS PRESENTED
THE 3-JUDGE FEDERAL DISTRICT COURT FOR THE
WESTERN DISTRICT OF NORTH CAROLINA ERRED,
AS FOLLOWS:
I. IN HOLDING AND CONCLUDING THAT THE
NORTH CAROLINA STATUTE ABOVE QUOT
ED VIOLATED THE EQUAL PROTECTION
CLAUSE OF THE FOURTEENTH AM END
MENT.
II. IN ERRONEOUSLY CONSTRUING THE WORD
“BALANCE” AS USED IN THE NORTH CARO
LINA STATUTE TO BE A PROHIBITION
AGAINST RACIAL ADJUSTMENT IN THE OR
GANIZATION OF A PUBLIC SCHOOL SYSTEM
AND IN CONSTRUING THE STATUTE TO
MEAN THAT BUSING SHOULD NOT BE RE
SORTED TO BUT AS FLATLY PROHIBITING
BUSING.
III. IN HOLDING IN SUBSTANCE THAT THE
STATE HAS NO CONTROL OVER THE EXPEN
DITURE OF ITS FUNDS, BUT, TO THE CON
TRARY, MUST EXPEND ITS FUNDS ACCORD
ING TO THE DICTATION OF THE FEDERAL
COURT.
IV. IN FAILING TO DISMISS THE ACTION AS
AGAINST THE STATE OFFICIALS WHO ARE
NOT CONCERNED W ITH THE BUSING OF
THE PUPILS WHICH IS PURELY THE FUNC
TION OF THE LOCAL SCHOOL UNITS.
STATUTES AND CONSTITUTIONAL
PROVISIONS INVOLVED
N.C.G.S. 115-176.1 (The portion of this statute as quoted
above); Article 22 of Chapter 115 of the General Statutes of
5
North Carolina (Dealing with the rights and duties as to the
busing of public school pupils).
Section 115-176.1 of the North Carolina
General Statutes is constitutional
This portion of the statute simply prohibits compulsory at
tendance or assignment of any pupil to a public school on
account of race, creed, or national origin, for the express pur
pose of creating a balance or ratio of race, religion or national
origins. It also prohibits involuntary busing of students “ in
contravention of this article” and provides that public funds
shall not be used for such busing.
This is in line with the enactment of the Congress in the
Civil Rights Act of 1964. In the definition of “ desegregation”
in subsection (b) of 42 USC 2000c it is expressly said:
“ ‘Desegregation’ shall not mean the assignment of students to
public schools to overcome racial imbalance.” Likewise, in 42
USC 2000c-6, it is provided in subsection (a) (2), as follows:
“Provided that nothing herein shall empower any official
or court of the United States to issue any order seeking
to achieve a racial balance in any school by requiring the
transportation of pupils or students from one school to
another or one school district to another in order to
achieve such racial balance,”
Apparently Senator Humphrey, when this matter was be
ing debated on the floor of the Senate, held an opinion quite
contrary to the order of the Court in this matter. In 110 Con
gressional Record 12717, we find the following:
“ Mr. Humphrey * * * I should like to make one further
reference to the Gary case. This case makes it quite,clear
that while the Constitution prohibits segregation, it does
not require integration * * * . The bill does not attempt
to integrate the schools but it does attempt to eliminate
segregation in the schools * * * . The fact that there is
a racial imbalance per se is not something which is un
constitutional. That is why we have attempted to clarify
it with the language in Section 4.”
6
It is submitted that the definition of “ desegregation” is on
a par with the congressional definition, which is found in sub
section (b) of 42 USC 2000c, which is as follows:
“ ‘Desegregation’ means the assignment of students to
public schools and within such schools without regard to
their race, religion, or national origin, but ‘desegregation’
shall not mean the assignment of students to public
schools in order to overcome racial imbalance.”
If the first sentence of the State Statute is therefore un
constitutional, then the Congressional Act is likewise uncons
titutional and invalid. If this sentence is unconstitutional, then
that portion of the State statute which forbids exclusion from
a school on the basis of race is also uncontstitutional for these
two statutory prohibitions are different statements of the
same thing. The first of these provisions says to the school
authorities that you cannot require a child because of his
race to stay away from any given school. The second pro
vision says to the school authorities you cannot require a
child, because of his race, to enter any given school. The
thrust of these two provisions is that school attendance based
entirely on race is prohibited.
The holding of the 3-Judge Federal Court in this case should
be scrutinized closely from a constitutional standpoint. What
the District Court has done, as well as courts elsewhere, is
simply to convert a civil right or civil liberty into a civil
obligation analogous to the obligation of compulsory con
scription for military purposes.
The whole scheme of busing pupils on a racial basis to re
move a racial imbalance in a public school is not only a
dictatorial exertion of power on the part of the judiciary but
is a confusion between civil rights and civil obligations. It
means that parents and pupils must submit to the judge's
choice of the schools they shall attend based upon the color of
their skin to accomplish a fictitious governmental purpose. It
simply means that black people or white people are directed by
judicial dictat to go to one school rather than to another.
Judicial dictation or tyranny by an all-powerful government
is not removed because it is done in the name of equality. In
7
other words, black people, or, for that matter, white people,
are under a governmental obligation to associate with whom
ever the government chooses because the government has
decided to compel such association, and, therefore, the civil
right to associate with whomsoever citizens choose to associate
with is not a right but a governmental obligation. If this
doctrine is pushed to the limits of its logic, then the Four
teenth Amendment is constitutional authority for totalitar
ianism for the government can deprive citizens of their rights
or of their civil liberties if it merely deprives all citizens equal
ly of such liberty or right.
If a black person enters a common carrier, such as a bus,
he has a right to sit down at the front of the bus where the
white people were formerly accustomed to having their seats,
or he has a right to go to the back of the bus where the
black people were formerly seated. He may choose any seat
on the bus he desires, but if he decides to sit at the back of
the bus, it is submitted that the bus driver has no constitu
tional right to go back and seize him by the collar and drag
him up to front of the bus. In this connection certain langu
age in the case of BRADLEY v. SCHOOL BOARD OF
RICHMOND, 345 F. 2d 310, 315, 316 (4th Cir. 1965), the
Court dealt with the argument of certain black plaintiffs who
wished their children to attend schools predominantly attend
ed by black people. The Court said:
“ To that extent, they (plaintiffs) say that, under any
freedom of choice system, the state ‘permits’ segregation
if it does not deprive Negro parents of a right of choice.
* * * There is nothing in the Constitution which prevents
his voluntary association with others of his race or which
would strike down any state law which permits such
association. The present suggestion that a Negro’s right
to be free from discrimination requires that the state
deprive him of his volition is incongruous.”
There is nothing in Brown I or Brown II that supports
the ruling of the Court (BROWN v. BOARD OF EDUCA
TION, 347 U. S. 483, 74 S. Ct. 686, 98 L. ed. 873; BROWN
v. BOARD OF EDUCATION OF TOPEKA, 349 U. S. 294,
8
99 L. ed. 1083, 75 S. Ct. 753) . It is noticeable, and, in fact,
it should be emphasized, that Brown II is utterly silent as
to redressing racial imbalance, but, to the contrary, deals with
school districts and attendance areas. The Court said:
“ The burden rests upon the defendants to establish at
such time as is necessary in the public interest and is con
sistent with good faith compliance at the earliest prac
ticable date. To that end, the courts may consider prob
lems related to administration, arising from the physical
condition of the school plant, the school transportation
system, personnel, revision of school districts and at
tendance areas into compact units to achieve a system of
determining admission to the public schools on a nonraeial
basis, and revision of local laws and regulations which
may be necessary in solving the foregoing problems.”
It is submitted, therefore, that nondiscriminatory zoning or
attendance areas related to the neighborhood school to which
pupils are admitted on a nonraeial basis is the proper solution
(see: BELL v. SCHOOL CITY OF GARY, INDIANA (CCA-
7 ), 324 F. 2d 209, cert. den. 377 U. S. 924; UNITED STATES
v. JEFFERSON COUNTY BOARD OF EDUCATION
(CCA-5), 372 F.2d 836, 879; DEAL v. CINCINNATI BOARD
OF EDUCATION, 369 F. 2d 55 (CCA-6), cert. den. 389
U. S. 847; BOARD OF PUBLIC INSTRUCTION OF DUVAL
COUNTY, FLORIDA v. BRAXTON (CCA-5), 402 F. 2d
900; DOWN v. BOARD OF EDUCATION OF KANSAS
CITY (CCA-10), 336 F. 2d 988, cert. den. 380 U. S. 914;
BOARD OF EDUCATION OF OKLAHOMA CITY PUBLIC
SCHOOLS v. DOWELL (CCA-10), 375 F. 2d 158, cert. den.
387 U. S. 931; GRAVE v. BOARD OF EDUCATION OF
NORTH LITTLE ROCK, ARKANSAS SCHOOL DIS
TRICT, 299 F. Supp. 843).
The mention of the school transportation system in Brown
II refers to the existing school transportation and not to the
creation of new transportation systems to redress racial im
balance.
An examination of the orders entered by District Judge
McMillan, as shown in the Appendix to Petition for Certiorari
9
in No. 1713, October Term, 1969, already before this Court,
will show that the District Judge has proposed to organize
the public schools of Charlotte on the basis of mathematical
ratios and not only do this but keep students in constant
motion, moving from one school to another during the term,
based upon computer calculations.
If what we have said as to the constitutionality of the
first sentence in the judgment below is true, then the second
sentence, which prohibits the expenditure of public funds for
involuntary busing to redress racial imbalance, is also a valid
exercise of State power.
The statute does not prohibit normal
transportation for a public school sys
tem. It only prohibits busing to relieve
a racial imbalance or to provide public
schools whose attendance is based on
mathematical ratios.
It seems quite clear to us that the 3-Judge Court has mis
construed the language of the statute. Among other things,
the Court said:
“ Stated differently, a statute favoring the neighborhood
school concept, freedom-of-choice plans, or both, can
validly limit a school board’s choice of remedy only if
the policy favored will not prevent the operation of a
unitary system. That it may or may not depends upon
the facts in a particular school system. The flaw in this
legislation is its rigidity. As an expression of State policy,
it is valid. To the extent that it may interfere with the
board’s performance of its affirmative constitutional duty
to establish a unitary system, it is invalid.”
What the Court is really saying is that students may be
bused to rectify a racial imbalance or to conform to a math
ematical ratio. In another part of the opinion the Court said:
“ The second and third sentences are unconstitutional.
They plainly prohibit school boards from assigning, com
pelling, or involuntarily busing students on account of
race, or in order to racially ‘balance’ the school system.”
10
What the Court has really said is that there must be a
unitary system without defining the unitary system. The Court
has also said that students may be bused to establish racial
balance, or, in other words, to correct a racial imbalance,
which is the very thing prohibited by the Civil Rights Act
of 1964. It seems strange that the Congress can prohibit this
course of action and yet the State cannot prohibit the same
course or type of action. The Court furthermore assumes that
busing to redress racial imbalance is a constitutionally ap
proved governmental objective and is a required constitution
al obligation which has yet to be decided, and as far as
this Court has gone is to say that a unitary system was one
“ within which no person is to be effectively excluded from
any school because of race or color.” (ALEXANDER v.
HOLMES COUNTY BOARD OF EDUCATION, 396 U. S.
19, 90 S. Ct. 29, quoted in concurring opinion in NORTH-
CROSS v. BOARD OF EDUCATION OF MEMPHIS, ____
U. S. ____ , 25 L. ed. 2d 246, 90 S. Ct. ------ ) Thus it will be
seen that the Court has exceeded that part of the definition
already given.
The Court also overlooks the fact that neither the local
board of education nor the State defendants are compelled
to operate a transportation system.
In Section 115-180 of the General Statutes of North Caro
lina it is said:
“ Each county board of education, and each city board of
education is hereby authorized, but is not required, to
acquire, own and operate school buses for the transport
ation of pupils enrolled in the public schools of such
county or city administrative unit and all persons em
ployed in the operation of such schools within the limit
ations set forth in this subchapter. Each such board may
operate such buses to and from such of the schools within
the county or city administrative unit, and in such num
ber, as the board shall from time to time find practicable
and appropriate for the safe, orderly and efficient trans
portation of such pupils and employees of such schools.”
11
The State Board of Education has no authority over the
transportation of pupils. In a portion of Section 115-181 of
the General Statutes of North Carolina we find the following:
“ (a) The State Board of Education shall not have
authority over or control of the transportation of pupils
and employees upon any school bus owned and operated
by any county or city board of education, except as
provided in this subchapter.
“ (b) The State Board of Education shall be under no
duty to supply transportation to any pupil or employee
enrolled or employed in any school. Neither the State
nor the State Board of Education shall in any manner be
liable for the failure or refusal of any county or city
board of education to furnish transportation, by school
bus or otherwise, to any pupil or employee of any school,
or for any neglect or action of any county or city board
of education, or any employee of any such board, in the
operation or maintenance of any school bus.”
The State Board of Education does allocate to the respec
tive county and city boards of education all funds appro
priated from time to time by the General Assembly for the
purpose of providing transportation to the pupils enrolled
in the public schools within the State. These funds are al
located according to the number of pupils to be transported,
the length of bus routes, road conditions and all other cir
cumstances affecting the cost of transportation of pupils. The
Superintendent of Public Instruction of the State has no
duties in regard to transportation and the Governor of the
State has no duties relating to school transportation. The
Supreme Court of North Carolina has construed these statutes
to relieve the State Board of Education from all duties in
the field of transportation (HUFF v. BOARD OF EDUCA
TION, 259 N. C. 75, 130 S. E. 2d 26; BROWN v. CHAR-
LOTTE-MECKLENBURG BOARD OF EDUCATION, 267
N. C. 740, 743, 149 S. E. 2d 10). And in the case of SPAR
ROW v. GILL, 304 F. Supp. 86 (1969), a 3-judge federal
court said:
“ The State may allocate its funds on any basis it chooses
12
— or may cut off funds entirely— so long as it does not ca
priciously favor one group of citizens over another.”
The order of the 3-Judge Court, therefore, requires the
State to furnish funds to provide public school busing to
redress a racial imbalance even though the amount of such
funds exceeds the amount appropriated for normal trans
portation or exceeds the entire appropriation of the General
Assembly. We do not contend that school boards are pro
hibited from changing the racial organization of any par
ticular school facility to provide constitutional schools and
that buses may be used to transport to any of the facilities.
We do contend that children cannot be changed around and
bused far beyond the school in a pupil’s residence area simply
to redress racial imbalance or that pupils may be moved
around during the school term to maintain mathematical
ratios.
The holding of the 3-Judge Court deprives
the State of control over its funds.
While we have already discussed to some extent this subject,
it should be stated that we are not aware of the proposition
that a 3-judge federal court may order a State to expend its
funds in a particular manner or to require the General As
sembly of a State to appropriate funds according to the federal
court. It has not yet been held by this Court that a State
is required and that it is its constitutional duty to furnish
funds according to some federal judicial formula.
The Court erred in failing to sustain
the Motion to Dismiss all of the
State defendants.
All federal judges in the State of North Carolina, except
one, have held that the State Board of Education, the State
Superintendent of Public Instruction and other State officers
do not control and administer the public school system but
such power is lodged in the local units (CONSTANTIAN v.
ANSON COUNTY, 244 N. C. 221, 93 S. E. 2d 163; DILDAY
v. BOARD OF EDUCATION, 267 N. C. 438, 148 S. E. 2d
513; IN RE HAYS, 261 N. C. 616, 135 S. E. 2d 645; BLUE
v. DURHAM PUBLIC SCHOOL DISTRICT, 95 F. Supp.
13
441; JEFFERS V . WHITLEY, 165 F. Supp, 951; McKISSICK
v. DURHAM CTTY BOARD OF EDUCATION, 176 F.
Supp. 3).
In the case of COVINGTON v. EDWARDS, CCA-4, 264
F. 2d 780, the United States Court of Appeals for the Fourth
Circuit upheld this same principle. The 3-Judge Federal Court,
therefore, should have dismissed this action against all the
defendants. The defendant, Judge McLean, should not have
been restrained from proceeding with the suit in the State
Court (MITCHELL v. DONOVAN, No. 726, October Term,
1969, Opinion filed June 15, 1970; ATLANTIC COASTLINE
RAILROAD v. BROTHERHOOD OF LOCOMOTIVE EN
GINEERS, No. 477, October Term, 1969, Opinion filed June
8, 1970).
CONCLUSION
We conclude, therefore, that this Court should accept juris
diction in this case. We further assert that quotas for religious
minorities are not approved; quotas have been revised in
our national immigration laws; quotas in alien employment
rights have not been approved. We submit that quotas should
not be approved in the public school system as between the
races anymore than proportional representation in the jury
system which this Court has expressly diapproved. Black
pupils are entitled to go to the public schools on the same
basis as white pupils and all this Court has decided in the
Brown Cases is that the State must eliminate State sources
of racial discrimination.
Respectfully submitted,
ROBERT B. MORGAN
Attorney General of the
State of North Carolina.
RALPH MOODY
Deputy Attorney General of
the State of North Carolina
ANDREW A. VANORE, JR.
Assistant Attorney General of
the State of North Carolina
P. O. Box 629
Justice Building
Raleigh, North Carolina 27602
Telephone: 829-3377
14
APPEN DIX
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
Civil No. 1974
JAMES E. SWANN, et al, Plaintiffs,
versus
CHARLOTTE-MECKLENBURG B O A R D
OF EDUCATION, a public body corporate;
W ILLIAM E. POE; HENDERSON BELK;
DAN HOOD; BEN F. HUNTLEY; BETSEY
KELLY; COLEMAN W. KERRY, JR.; JULIA
MAULDEN; SAM McNINCH, III; CARL
TON G. WATKINS; THE NORTH CARO
LINA STATE BOARD OF EDUCATION, a
public body corporate; and DR. A. CRAIG
PHILLIPS, Superintendent of Public Instruc
tion of the State of North Carolina, Defendants,
and
HONORABLE ROBERT W. SCOTT, Gover
nor of the State of North Carolina; HONOR
ABLE A. C. DAVIS, Controller of the State
Department of Public Instruction; HONOR
ABLE W ILLIAM K. McLEAN, Judge of the
Superior Court of Mecklenburg County; TOM
B. HARRIS; G. DON ROBERSON; A.
BREECE BRELAND; JAMES M. POSTELL;
W ILLIAM E. RORIE, JR.; CHALMERS R.
CARR; ROBERT T. WILSON; and the CON
CERNED PARENTS ASSOCIATION, an un
incorporated association in Mecklenburg Coun- Additional
ty; JAMES CARSON and W ILLIAM H. Parties
BOOE, Defendant.
15
CIVIL NO. 2631
MRS. ROBERT LEE MOORE, et al, Plaintiffs,
versus
CHARLOTTE-MECKLENBURG B O A R D
OF EDUCATION and WILLIAM C. SELF,
Superintendent of Charlotte-Mecklenburg Pub
lic Schools, Defendants.
FINAL JUDGMENT
Upon reconsideration of our memorandum opinion filed
April 28, 1970, we withdraw Part V.
It is now ORDERED, ADJUDGED and DECREED that
the following portion of N. C. General Statute 115-176.1
prohibiting assignment by race and bussing be and hereby is
held unconstitutional, void, and of no effect:
No student shall be assigned or compelled to attend any
school on account of race, creed, color or national origin,
or for the purpose of creating a balance or ratio of race,
religion or national origins. Involuntary bussing of stu
dents in contravention of this article is prohibited, and
public funds shall not be used for any such bussing.
All parties are hereby enjoined from enforcing, or seeking the
enforcement of, the foregoing portion of the statute.
Plaintiff’s motion to hold defendants in contempt is denied;
the various motions to dismiss are denied.
This 22 day of June, 1970.
J. Braxton Craven
United States Circuit Judge
John D. Butzner, Jr.
United States Circuit Judge
James B. McMillan
United States District Judge
16
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
Civil No. 1974
JAMES E. SWANN, et al. Plaintiffs,
versus
CHARLOTTE-MECKLENBURG B O A R D
OF EDUCATION, a public body corporate;
W ILLIAM E. POE; HENDERSON BELK;
DAN HOOD; BEN F. HUNTLEY; BETSEY
KELLY; COLEMAN W. KERRY, JR.; JULIA
MAULDEN; SAM McNINCH, III; CARL
TON G. WATKINS; THE NORTH CARO
LINA STATE BOARD OF EDUCATION, a
public body corporate; and DR. A. CRAIG
PHILLIPS, Superintendent of Public Instruc
tion of the State of North Carolina, Defendants,
and
HONORABLE ROBERT W. SCOTT, Gover
nor of the State of North Carolina; HONOR
ABLE A. C. DAVIS, Controller of the State
Department of Public Instruction; HONOR
ABLE WILLIAM K. McLEAN, Judge of the
Superior Court of Mecklenburg County; TOM
B. HARRIS; G. DON ROBERSON; A.
BREECE BRELAND; JAMES M. POSTELL;
W ILLIAM E. RORIE, JR.; CHALMERS R.
CARR; ROBERT T. WILSON; and the CON
CERNED PARENTS ASSOCIATION, an un
incorporated association in Mecklenburg Coun- Additional
ty; JAMES CARSON and WILLIAM II. Parties
BOOE, Defendant.
17
Civil No. 2631
MRS. ROBERT LEE MOORE, et al., Plaintiffs,
versus
CHARLOTTEE-MECKLENBURG BOARD
OF EDUCATION and WILLIAM C. SELF,
Superintendent of Charlotte-Mecklenburg Pub
lic Schools, Defendants.
THREE-JUDGE COURT
(Heard March 24, 1970 Decided April 29, 1970.)
Before CRAVEN and BUTZNER, Circuit Judges, and Mc-
MILLAN, District Judge.
Mr. J. LeVonne Chambers (Chambers, Stein, Ferguson & Tan
ning) and James M. Nabrit, III, for Plaintiffs in No. 1974;
Mr. William J. Waggoner (Weinstein, Waggoner, Sturges,
Odom & Bigger) and Mr. Benjamin Horack, for Defendants
in No. 1974; Mr. Ralph Moody, Deputy Attorney General,
and Mr. Andrew A. Vanore, Jr., Assistant Attorney General,
for State Defendants and Additional Parties-Defendant in No.
1974; and Mr. William H. Booe and Mr. Whiteford S. Blake-
ney, for other Additional Parties-Defendant in No. 1974.
Mr. William H. Booe and Mr. Whiteford S. Blakeney for
Plaintiffs in No. 2631; and Mr. William J. Waggoner (Weins
tein, Waggoner, Sturges, Odom & Bigger) for Defendants in
No. 2631.
CRAVEN, Circuit Judge:
This three-judge district court was convened pursuant to
28 U.S.C. § 2281, et seq. (1964), to consider a single aspect
of the above-captioned case: the constitutionality and impact
of a state statute, N. C. Gen. Stat. § 115-176.1 (Supp. 1969),
known as the antibussing law, on this suit brought to de
18
segregate the Charlotte-Mecklenburg school system. We hold
a portion of N. C. Gen. Stat. § 115-176.1 unconstitutional be
cause it may interfere with the school board’s performance of
its affirmative constitutional duty under the equal protection
clause of the Fourteenth Amendment.
I.
On February 5, 1970, the district court entered an order
requiring the Charlotte-Mecklenburg School Board to de
segregate its school system according to a court-approved plan.
Implementation of the plan could require that 13,300 addition
al children be bussed.1 This, in turn, could require up to 138
additional school buses.1 2
Prior to the February 5 order, certain parties filed a suit,
entitled Tom B. Harris, G. Don Roberson, et al. v. William C.
Self, Superintendent of Charlotte-Mecklenburg Schools and
Charlotte-Mecklenburg Board of Education, in the Superior
Court of Mecklenburg County, a court of general jurisdiction
of the State of North Carolina. Part of the relief sought was
an order enjoining the expenditure of public funds to pur
chase, rent or operate any motor vehicle for the purpose of
transporting students pursuant to a desegregation plan. A
temporary restraining order granting this relief was entered by
the state court, and, in response, the Swann plaintiffs moved
the district court to add the state plaintiffs as additional par
ties defendant in the federal suit, to dissolve the state restrain
ing order, and to direct all parties to cease interfering with the
federal court mandates. Because it appeared that the con
1. On March 5, 1970, the Fourth Circuit Court of Appeals stayed
that portion of the district court’s order requiring bussing of
students pending appeal to the higher court.
2. There is a dispute between the parties as to the additional num
ber of children who will be bussed and as to the number of
additional buses that will be needed. For our purposes, it is im
material whose figures are correct. The figures quoted are taken
from the district judge’s supplemental findings of fact, filed
March 21, 1970.
19
stitutionality of N. C. Gen. Stat. § 115-176.1 (Supp. 1969)
would be in question, the district court requested designation of
this three-judge-court on February 19, 1970. On February 25,
1970, the district judge granted the motion to add additional
parties. Meanwhile, on February 22, 1970, another state suit,
styled Mrs. Robert Lee Moore, et al. v. Charlotte-Mecklenburg
Board of Education and William C. Self, Superintendent of
Charlotte-Mecklenburg Schools, was begun. In this second
state suit, the plaintiffs also requested an order enjoining the
school board and superintendent from implementing the plan
ordered by the district court on February 5. The state court
judge issued a temporary restraining order embodying the relief
requested, and on February 26, 1970, the Swann plaintiffs
moved to add Mrs. Moore, et al., as additional parties defend
ant in the federal suit. On the same day, the state defend
ants filed a petition for removal of the Moore suit to fed
eral court. On March 23, 1970, the district judge requested a
three-judge court in the removed Moore case, and this panel
was designated to hear the matter. All the cases were consoli
dated for hearing, and the court heard argument by all parties
on March 24, 1970.
II.
N. C. Gen. Stat. § 115-176.1 (Supp. 1969) reads:
Assignment of pupils based on race, creed, color or
national origin prohibited.—No person shall be refused ad
mission into or be excluded from any public school in this
State on account of race, creed, color or national origin.
No school attendance district or zone shall be drawn for
the purpose of segregating persons of various races, creeds,
colors or national origins from the community.
Where administrative units have divided the geographic
area into attendance districts or zones, pupils shall be as
signed to schools within such attendance districts; provid
ed, however, that the board of education of an administra
tive unit may assign any pupil to a school outside of such
20
attendance district or zone in order that such pupil may
attend a school of a specialized kind including but not
limited to a vocational school or school operated for, or
operating programs for, pupils mentally or physically
handicapped, or for any other reason which the board of
education in its sole discretion deems sufficient. No stu
dent shall be assigned or compelled to attend any school
on account of race, creed, color or national origin, or for
the purpose of creating a balance or ratio of race, religion
or national origins. Involuntary bussing of students in
contravention of this article is prohibited, and public funds
shall not be used for any such bussing.
The provisions of this article shall not apply to a temp
orary assignment due to the unsuitability of a school for
its intended purpose nor to any assignment or transfer
necessitated by overcrowded conditions or other circum
stances which, in the sole discretion of the school board,
require assignment or reassignment.
The provisions of this article shall not apply to an ap
plication for the assignment or reassignment by the parent,
guardian or person standing in loco parentis of any pupil
or to any assignment made pursuant to a choice made by
any pupil wdio is eligible to make such choice pursuant
to the provisions of a freedom of choice plan voluntarily
adopted by the board of education of an administrative
unit.
It is urged upon us that the statute is far from clear and
may reasonably be interpreted several different ways.
(A) Plaintiffs read the statute to mean that the school
board is prevented from complying with its duty under
the Fourteenth Amendment to establish a unitary school
system. See, e.g., Green v. County School Bd. of New Kent
County, 391 U.S. 430, 439 (1968). In support of this con
tention, plaintiffs argue that the North Carolina General
Assembly passed § 115-176.1 in response to an April 23,
21
1909, district court order, which required the school board
to submit a plan to desegregate the Charlotte schools for
the 1909-70 school year. Under plaintiffs’ interpretation of
the statute, the board is denied all desegregation tools
except nongerrymandered geographic zoning and freedom
of choice. Implicit in this, of course, is the suggestion that
zoning and freedom of choice will be ineffective in the
Charlotte context to disestablish the asserted duality of
the present system.
(B) The North Carolina Attorney General argues that
the statute was passed to preserve the neighborhood school
concept. Under his interpretation, the statute prohibits
assignment and bussing inconsistent with the neighbor
hood school concept. Thus, to disestablish a dual system
the district court could, consistent with the statute, only
order the board to geographically zone the attendance
areas so that, as nearly as possible, each student would be
assigned to the school nearest his home regardless of his.
race. Implicit in this argument is that any school system
is per se unitary if it is zoned according to neighborhood
patterns that are not the result of officially sanctioned
racial discrimination. Although the Attorney General em
phasizes the expression of state policy by the Legislature
in favor of the neighborhood school concept, he recognizes,
of course, that the statute also permits freedom of choice
if a school board voluntarily adopts such a plan. Thus, the
plaintiffs and the Attorney General read the statute in
much the same way: that it limits lawful methods of
accomplishing desegregation to nongerrymandered geo
graphic zoning and freedom of choice.
(C) The school board’s interpretation of the statute is
more ingenious. The board concedes that the statute pro
hibits assignment according to race, assignment to achieve
racial balance, and involuntary bussing for either of these
purposes, but contends that the facial prohibitions of the
statute only apply to prevent a school board from doing
22
more than necessary to attain a unitary system. The
argument is that since the statute only begins to operate
once a unitary system has been established, it in no way
interferes with the board’s constitutional duty to de~
segrate the schools. Counsel goes on to insist that Char-
lotte-Mecklenburg presently has a unitary system and,
therefore, that the state court constitutionally applied the
statute to prevent further unnecessary racial balancing.
(D) Plaintiffs in the Harris suit contend (1) that in
42 U.S.C. §§ 2000c (b) and 2000c-6 (a) (2) (1964)3 Con
gress expressly prohibited assignment and bussing to
achieve racial balance, (2) that to compel a child to at
tend a school on account of his race or to compel him to
be involuntarily bussed to achieve a racial balance violates
the principle of Brown v. Bd. of Ed. of Topeka, 347 U.S.
483 (1954), and (3) that N. C. Gen. Stat. § 115-176.1
merely embodies the principle of the neighborhood school
in accordance with Brown and the Civil Rights Act of
1964. We may dispose of the first contention at once. The
statute “ cannot be interpreted to frustrate the constitu
tional prohibition [against segregated schools].” United
3.
§ 2000c:
As used in this subchapter—
(b) “Desegregation” means the assignment of students to
public schools and within such schools without regard to their
race, color, religion, or national origin, but “desegregation” shall
not mean the assignment of students to public schools in order
to overcome racial imbalance.
§ 2000c-6(a):
(2) [Provided that nothing herein shall empower any official
or court of the United States to issue any order seeking to
achieve a racial balance in any school by requiring the trans
portation of pupils or students from one school to another or
one school district to another in order to achieve such racial
balance, or otherwise enlarge the existing power of the court to
insure compliance with constitutional standards.
23
States v. School Dist. 151 of Cook Co., 404 F. 2d 1125,
1130 (7th Cir. 1968).
(E) Plaintiffs in the Moore suit argue that the district
court order of February 5, 1970, was in contravention of
Brown and, therefore, that the state court order in their
suit was justified. However, the Moore plaintiffs also argue
that certain parts of the second and third paragraphs in
the state statute are unconstitutional because they give
the school board the authority to assign children to
schools for whatever reasons the board deems necessary
or sufficient. The Moore plaintiffs interpret these portions
of the statute as permitting assignment and bussing on
the basis of race contrary to Brown and the Fourteenth
Amendment.
III.
Federal courts are reluctant, as a matter of comity and
respect for state legislative judgment and discretion, to strike
down state statutes as unconstitutional, and will not do so
if the statute reasonably can be interpreted so as not to
conflict with the federal Constitution. But to read the statute
as innocuously as the school board suggests would, we think,
distort and twist the legislative intent. We agree with plain
tiffs and the Attorney General that the statute limits the
remedies otherwise available to school boards to desegregate
the schools. The harder question is whether the limitation
is valid or conflicts with the Fourteenth Amendment. We
think the question is not so easy, and the statute not so
obviously unconstitutional, that the question may lawfully be
answered by a single federal judge, see Turner v. City of
Memphis, 369 U. S. 350 (1962); Bailey v. Patterson, 369 U. S.
31 (1962), and we reject plaintiffs’ attack upon our juris
diction. Swift & Co. v. Wickham, 382 U. S. I l l (1965); C.
Wright, Law of Federal Courts § 50 at 190 (2d ed. 1970).
In Green v. County School Bd. of New Kent Co., 391 U. S.
430 (1968), the Supreme Court declared that a school board
24
must take effective action to establish a unitary, nonracial
system, if it is not already operating such a system. The
Court neither prohibited nor prescribed specific types of plans,
but, rather, emphasized that it would judge each plan by
its ultimate effectiveness in achieving desegregation. In Green
itself, the Court held a freedom-of-choice plan insufficient be
cause the plan left the school system segregated, but stated
that, under the cirumstances existing in New Kent County,
it appeared that the school board could achieve a unitary
system either by simple geographical zoning or by consoli
dating the two schools involved in the case. 391 U. S. at
442, n. 6. Under Green and subsequent decisions, it is clear
that school boards must implement plans that work to achieve
unitary systems. Northcross v. Bd. of Ed. of the Memphis
City Schools,------ U. S---------, 38 L.W. 4219 (1970) ; Alexander
v. Holmes Co. Bd. of Ed., 396 U. S. 19 (1969) . Plans that do
not produce a unitary system are unacceptable.4
We think the enunciation of policy by the legislature of
the State of North Carolina is entitled to great respect.
Federalism requires that whenever it is possible to achieve
a unitary system within a framework of neighborhood schools,
a federal court ought not to require other remedies in dero
gation of state policy. But if in a given fact context the
state’s expressed preference for the neighborhood school cannot
be honored without preventing a unitary system, it is the
former policy which must yield under the Supremacy Clause.
Stated differently, a statute favoring the neighborhood
school concept, freedom-of-choice plans, or both can validly
4. The reach of the Court’s mandate is not yet clear:
[A]s soon as possible . . . we ought to resolve some of the
basic practical problems when they are appropriately presented
including whether, as a constitutional matter, any particular
racial balance must be achieved in the schools; to what extent
school districts and zones may or must be altered as a con
stitutional matter; to what extent transportation may or must
be provided to achieve the ends sought by prior holdings of the
Court.
25
limit a school board’s choice of remedy only if the policy
favored will not prevent the operation of a unitary system.
That it may or may not depends upon the facts in a particular
school system. The flaw in this legislation is its rigidity. As
an expression of state policy, it is valid. To the extent that
it may interfere with the board’s performance of its affir
mative constitutional duty to establish a unitary system, it
is invalid.
The North Carolina statute, analyzed in light of these
principles, is unconstitutional in part. The first paragraph
of the statute reads:
No person shall be refused admission into or be exclud
ed from any public school in this State on account of
race, creed, color or national origin. No school attendance
district or zone shall be drawn for the purpose of segre
gating persons of various races, creeds, or national origins
from the community.
Northcross v, Bd. of Ed. of the Memphis City Schools, -------
U. S. ____, 38 L.W. at 4220 (1970) (Chief Justice Burger,
concurring). For our purposes, it is sufficient to say that the
mandate applies to require “ reasonable” or “ justifiable” solu
tions. See generally Fiss, Racial Imbalance in the Public
Schools: The Constitutional Concepts, 78 Harv. L. Rev. 564
(1965).
There is nothing unconstitutional in this paragraph. It is
merely a restatement of the principle announced in Brown v.
Bd. of Ed. of Topeka, 347 U. S. 483 (1954) (Brown I).
The third paragraph of the statute reads:
The provisions of this article shall not apply to a
temporary assignment due to the unsuitability of a school
for its intended purpose nor to any assignment or trans
fer necessitated by overcrowded conditions or other cir
cumstances which, in the sole discretion of the school
board, require assignment or reassignment.
26
This paragraph merely allows the school board noninvidious
discretion to assign students to schools for valid administra
tive reasons. As we read it, it does not relate to race at all and,
so read, is constitutional.
The fourth paragraph provides:
The provisions of this article shall not apply to an
application for the assignment or reassignment by the
parent, guardian or person standing in loco parentis of
any pupil or to any assignment made pursuant to a choice
made by any pupil who is eligible to make such choice
pursuant to the provisions of a freedom of choice plan
voluntarily adopted by the board of education of an
administrative unit.
This paragraph relieves school boards from compliance with
the statute where they are implementing voluntarily adopted
freedom-of-choice plans within their systems. It does not re
quire the boards to adopt freedom of choice in any particular
situation, but leaves them free to comply with their con
stitutional duty by any effective means available, including,
where it is appropriate, freedom of choice. So interpreted,
the paragraph is constitutional.
The second paragraph of the statute contains the consti
tutional infirmity. It reads:
Where administrative units have divided the geographic
area into attendance districts or zones, pupils shall be
assigned to schools within such attendance districts; pro
vided, however, that the board of education of an ad
ministrative unit may assign any pupil to a school out
side of such attendance district or zone in order that
such pupil may attend a school of a specialized kind
including but not limited to a vocational school or school
operated for, or operating programs for, pupils mentally
or physically handicapped, or for any other reason which
the board of education in its sole discretion deems suf
ficient. No student shall be assigned or compelled to
27
attend any school on account of race, creed, color or
national origin, or for the purpose of creating a balance
or ratio of race, religion or national origins. Involuntary
bussing of students in contravention of this article is
prohibited, and public funds shall not be used for any
such bussing.
The first sentence of the paragraph presents no greater con
stitutional problem than the third and fourth paragraphs of
the statute, discussed above. It allows school boards to
establish a geographically zoned neighborhood school system,
but it does not require them to do so. Consequently, this
sentence does not prevent the boards from complying with
their constitutional duty in circumstances where zoning and
neighborhood school plans may not result in a unitary system.
The clause in the first sentence permitting assignment for
“ any other reason” in the board’s “ sole discretion” we read
as meaning simply that the school boards may assign outside
the neighborhood school zone for noninvidious administrative
reasons. So read, it presents no difficulty. The second and
third sentences are unconstitutional. They plainly prohibit
school boards from assigning, compelling, or involuntarily
bussing students on account of race, or in order to racially
“ balance” the school system. Green v. School Bd. of New Kent
Co., 391 U. S. 430 (1968), Brown v. Bd. of Ed. of Topeka, 349
U. S. 294 (1955) (Brown I I ) , and Brown v. Bd. of Ed of
Topeka, 347 U. S. 483 (1954) (Brown I), require school boards
to consider race for the purpose of disestablishing dual systems.
The Constitution is not color-blind with respect to the
affirmative duty to establish and operate a unitary school
system. To say that it is would make the constitutional prin
ciple of Brown I and II an abstract principle instead of an
operative one. A flat prohibition against assignment by race
would, as a practical matter, prevent school boards from alter
ing existing dual systems. Consequently, the statute clearly
contravenes the Supreme Court’s direction that boards must
take steps adequate to abolish dual systems. See Green v.
28
School Bd. of New Kent Co., 391 U. S. 430, 437 (1968) . As
far as the prohibition against racial “ balance” is concerned,
a school board, in taking affirmative steps to desegregate its
system, must always engage in some degree of balancing. The
degree of racial “ balance” necessary to establish a unitary
system under given circumstances is not yet clear, see North-
cross v. Bd. of Ed. of the Memphis City Schools, ........ U. S.
____, 38 L.W. at 4220 (1970) (Chief Justice Burger concur
ring) , but because any method of school desegregation in
volves selection of zones and transfer and assignment of pupils
by race, a flat prohibition against racial “ balance” violates
the equal protection clause of the Fourteenth Amendment.
Finally, the statute’s prohibition against “ involuntary bus
sing” also violates the equal protection clause. Bussing may
not be necessary to eliminate a dual system and establish a
unitary one in a given case, but we think the Legislature
went too far when it undertook to prohibit its use in all
factual contexts. To say that bussing shall not be resorted
to unless unavoidable is a valid expression of state policy, but
to flatly prohibit it regardless of cost, extent and all other
factors— including willingness of a school board to experiment
— contravenes, we think, the implicit mandate of Green that
all reasonable methods be available to implement a unitary
system.
Although we hold these statutory prohibitions unconstitu
tional as violative of equal protection, it does not follow that
“ bussing” will be an appropriate remedy in any particular
school desegregation case. On this issue we express no opinion,
for the question is now on appeal to the United States Court
of Appeals for the Fourth Circuit and is not for us to decide.
It is clear that each case must be analyzed on its own
facts. See Green v. School Bd. of New Kent Co., 391 U. S. 430
(1968). The legitimacy of the solutions proposed and ordered
in each case must be judged against the facts of a particular
school system. We merely hold today that North Carolina may
not validly enact laws that prevent the utilization of any
29
reasonable method otherwise available to establish unitary
school systems. Its effort to do so is struck down by the
equal protection clause of the Fourteenth Amendment and the
Supremacy Clause (Article VI, clause 2 of the Constitution) .
V.
As we have no cause to doubt the sincerity of the various
defendants, the plaintiffs’ motion to hold them in contempt
for interference with the district court’s orders and their
request for an injunction against enforcement of the statute
will be denied. We believe the defendants, including the state
court plaintiffs, will, pending appeal, respect this court’s judg
ment, which applies statewide with respect to the constitu
tionality of the statute.
Several of the parties have moved to be dismissed from
the case, alleging various grounds in support of their motions.
Because of the view we take of this suit and the limited relief
we grant, the motions to dismiss become immaterial. The
school board is undeniably a proper party before the court
on the constitutional issue, since it is a party to the desegre
gation suit. We can, therefore, consider and adjudge the
validity of the statute, regardless of the position of the other
parties. That we consider the substantive arguments of all
the parties in no way harms those who have moved to be
dismissed.
An appropriate judgment will be entered in accordance with
this opinion.
30
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
Charlotte Division
Civil Action No. 1974
JAMES E. SWANN, et al, Plaintiffs,
v
CHARLOTTE-MECKLENBURG BOARD
OF EDUCATION, a public body corporate;
WILLIAM E. POE; HENDERSON BELK;
DAN HOOD; BEN F. HUNTLEY; BETSEY
KELLY; COLEMAN W. KERRY, JR.; JULIA
MAULDEN; SAM McNINCH, III; CARL
TON G. WATKINS; THE NORTH CARO
LINA STATE BOARD OF EDUCATION, a
public body corporate; and DR. A. CRAIG
PHILLIPS, Superintendent of Public Instruc
tion of the State of North Carolina,
Defendants,
and
HONORABLE ROBERT W. SCOTT, Gover
nor of the State of North Carolina; HONOR
ABLE A. C. DAVIS, Controller of the State
Department of Public Instruction; HONOR
ABLE WILLIAM K. McLEAN, Judge of the
Superior Court of Mecklenburg County; TOM
B. HARRIS; G. DON ROBERSON; A.
BREECE BRELAND; JAMES M. POSTELL;
WILLIAM E. RORIE, JR.; CHALMERS R.
CARR; ROBERT T. WILSON; and the CON
CERNED PARENTS ASSOCIATION, an un
incorporated association in Mecklenburg Coun
ty; JAMES CARSON and WILLIAM H.
BOOE,
Additional Parties Defendant
)
)
)
)
)
)
)
)
)
)
)
)
) DESIGNA-
) TION OF
) THREE-
) JUDGE
) COURT
)
)
)
)
)
)
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)
)
31
It appearing to the undersigned Chief Judge of the Fourth
Judicial Circuit of the United States that a civil action as
above-entitled has been instituted in the United States District
Court for the Western District of North Carolina, and that a
motion and application for restraining order and other relief
have been filed in this action which do or may raise the ques
tion of the constitutionality of Section 115-176,1 of the General
Statutes of North Carolina, commonly spoken of as the “ anti
bussing” statute and which application and motion also raise
other questions; and that application for relief as set out in
the pending motion and order was made to James B. M c
Millan, United States District Judge for the Western District
of North Carolina, who has notified the undersigned, pursuant
to Section 2284 of Title 28, United States Code, of the pen
dency of such application to the end that a court of three
judges may be constituted in accordance with Section 2281,
Title 28, United States Code.
Now, therefore, I do hereby designate Honorable J. Braxton
Craven, Jr., United States Circuit Judge, Fourth Judicial
Circuit, and Honorable John D. Butzner, Jr., United States
Circuit Judge, Fourth Judicial Circuit, to serve with the
Honorable James B. McMillan in the hearing and deter
mination of the above-entitled action, as provided by law,
the three to constitute a district court of three judges as pro
vided by Section 2284, Title 28, United States Code.
This the 23rd day of February, 1970.
Clement F. Haynsworth, Jr.
Chief Judge - Fourth Circuit
32
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
Charlotte Division
Civil Action No. 1974
JAMES E. SWANN, et al, Plaintiffs, )
v )
CHARLOTTE-MECKLENBURG BOARD }
OF EDUCATION, a public body corporate; '
WILLIAM E. POE; HENDERSON BELK; '
DAN HOOD; BEN F. HUNTLEY; BETSEY '
KELLY; COLEMAN W. KERRY, JR.; JULIA '
MAULDEN; SAM McNINCH, III; CARL- '
TON G. WATKINS; THE NORTH CARO
LINA STATE BOARD OF EDUCATION, a '
public body corporate; and DR. A. CRAIG '
PHILLIPS, Superintendent of Public Instruc- ,
tion of the State of North Carolina, '
Defendants,
and '
HONORABLE ROBERT W. SCOTT, Gover- )
nor of the State of North Carolina; HONOR- )
xABLE A. C. DAVIS, Controller of the State )
Department of Public Instruction; HONOR- )
ABLE WILLIAM K. McLEAN, Judge of the )
Superior Court of Mecklenburg County; TOM )
B. HARRIS; G. DON ROBERSON; A. )
BREECE BRELAND; JAMES M. POSTELL; )
WILLIAM E. RORIE, JR.; CHALMERS R. )
CARR; ROBERT T. WILSON; and the CON- )
CERNED PARENTS ASSOCIATION, an un- )
incorporated association in Mecklenburg Coun- )
ty; JAMES CARSON and WILLIAM H. )
BOOE, )
Additional Parties Defendant )
NOTIFI
CATION
AND RE
QUEST
FOR DE
SIGNA
TION OF
THREE-
JUDGE
COURT
33
Several orders, starting April 23, 1969, have been entered by
this court dealing with pending motions for desegregation of
the Charlotte-Mecklenburg schools. The orders of December
1 and December 2, 1969, and February 5, 1970, are attached
as Exhibits A, B and C to this motion.
The December 2, 1969, order appointed Dr. John A. Finger,
Jr. to assist the court in the preparation of a plan for the
desegregation of the schools. The February 5, 1970, order
directs the schools to be desegregated according to various prin
ciples described or referred to in the order, including the
requirement erroneously advertised as “ involuntary bussing
to achieve racial balance” which reads as follows:
“That transportation be offered on a uniform nonracail
basis to all children whose attendance in any school is
necessary to bring about the reduction of segregation,
and who live farther from the school to which they
are assigned than the Board determines to be walking
distance.”
A suit has been filed in the General Court of Justice, Su
perior Court Division, Mecklenburg County, North Carolina,
No. 70-CVS-1097, entitled “ TOM B. HARRIS, G. DON RO
BERSON, et al, Plaintiffs, vs. W ILLIAM C. SELF, Superin
tendent of Charlotte-Mecklenburg Schools, and CHAR
LOTTE BOARD OF EDUCATION, Defendants,” and pur
suant to allegations made in that action, Judge W, K. McLean,
of the Superior Court of North Carolina, has entered an
order temporarily restraining the School Board and the Su
perintendent from paying Dr. Finger’s bills until they have
been approved by the Board of Education, and ordering that
“ the defendant Charlotte-Mecklenburg Board of Education
and its agents, servants and employees be and they hereby
are enjoined and restrained from expending any money from
tax or other public funds for the purpose of purchasing or
renting any motor vehicles, or operating or maintaining such,
for the purpose of involuntarily transporting students in the
34
Charlotte-Mecklenburg School System from one school to
another and from one district to another district.”
The complaint, the amended complaint and the two orders
of Judge McLean dated February 12, 1970, are attached
hereto as Exhibit D.
The Governor of North Carolina has made a public state
ment, Exhibit E, and has written a letter to the Department
of Administration, Exhibit F.
The State Superintendent of Public Instruction, a party to
this case, has made a public statement, Exhibit G.
Reports received from the School Board on February 12,
1970, and February 19, 1970, fail to mention Judge McLean’s
order, and fail to indicate that the Board have appealed or
intend to appeal Judge McLean’s order; and these reports also
reveal no action by the Board or school staff addressed to the
transportation problem. It appears that whether the action of
Judge McLean and the other state officials do or do not direct
ly conflict with this court’s orders, the practical effect of those
actions is or may be to delay or defeat compliance with the
orders of this United States Court.
The plaintiffs have filed a motion to make additional parties,
and have requested this court to enter orders dissolving Judge
McLean’s restraining orders and directing the Governor, the
State Department of Instruction and the “Concerned Parents
Association” and their attorneys and others not to interfere
further with the compliance of the school Board with the
orders of this court.
Some of the issues raised by this situation may involve the
constitutionality of a state statute and others may be matters
cognizable by a single judge.
It appearing to the court that pursuant to Title 28, U.S.C.A.,
this matter should be heard and determined by a district court
of three judges.
35
NOW, THEREFORE, it is respectfully requested that the
Chief Judge of the United States Court of Appeals for the
Fourth Circuit designate two other judges, at least one of whom
shall be a circuit judge, to serve with the undersigned district
judge as members of the court to hear and determine the action.
This the 19th day of February, 1970.
James B. McMillan
United States District Judge
36
IN THE
UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
JAMES E. SWANN, et al, )
Plaintiffs )
v )
)
CHARLOTTE-MECKLENBURG BOARD )
OF EDUCATION, a public body corporate; )
WILLIAM E. POE; HENDERSON BELL: )
DAN HOOD; BEN F. HUNTLEY; BETSEY ) CIVIL
KELLY; COLEMAN W. KERRY, JR.; JULIA ) ACTION
MAULDEN; SAM McNINCH, III; CARL- ) NO. 1974
TON G. WATKINS; THE NORTH CARO- )
LINA STATE BOARD OF EDUCATION, a )
public body corporate; and DR. A. CRAIG )
PHILLIPS, SUPERINTENDENT OF PUB- )
LIC INSTRUCTION OF THE STATE OF )
NORTH CAROLINA, )
Defendants )
SUPPLEMENTAL COMPLAINT
I.
This Supplemental Complaint is a proceeding for a tempor
ary restraining order and a preliminary and permanent in
junction against the enforcement of the portions of North
Carolina General Statutes §115-176.1, (Chapter 1274 of the
Session Laws of the 1969 General Assembly of North Carolina,
ratified on July 2, 1969, a copy of which is attached hereto
as Exhibit A) which reads:
“ No student shall be assigned or compelled to attend any
school on account of race, creed, color or national origin,
or for the purpose of creating a balance or ratio of race,
37
religion or national origin. Involuntary bussing of stu
dents in contravention of this Article is prohibited, and
public funds shall not be used for any such bussing.”
In addition, plaintiffs seek a declaratory judgment that the
statutory provisions complained of are unconstitutional on
their face and as applied.
II.
A. Jurisdiction of this Court is invoked under 28 USC § 1343,
this being a suit in equity authorized by 42 USC § 1983 to
redress the deprivation, under color of North Carolina Law, of
rights, privileges and immunities guaranteed by the Thirteenth
and Fourteenth Amendments to the Constitution of the United
States.
B. Jurisdiction is further invoked under 28 USC § § 2281
and 2284, this being a suit for a temporary restraining order,
an interlocutory and permanent injunction restraining the en
forcement, operation and execution of portions of North Caro
lina General Statutes § 115-176.1 and requiring the convening
of a three-judge Federal Court. Jurisdiction is further invoked
under 28 USC § § 2201 and 2202, this being a suit for a declar
atory judgment declaring the unconstitutionality of portions of
North Carolina General Statutes 115-176.1.
III.
A. The plaintiffs bringing this Supplemental Complaint are
those plaintiffs who originally brought this action styled James
E. Swann, et ah, v. Charlotte-Mecklenburg Board of Educa
tion, Civil Action No. 1974, which was filed on January 12,
1965.
B. This Supplemental Complaint, as the original complaint,
is brought on behalf of the individual plaintiffs and other black
students and parents similarly situated, pursuant to Rule 23 (a)
and (b) of the Federal Rules of Civil Procedure. There are
common questions of law and fact affecting the rights of such
other black students, who are and have been limited, classi
38
fied, segregated or otherwise discriminated against in ways
which deprive or tend to deprive them of equal educational
opportunities because of race or color. The members of the class
are so numerous as to make it impractical to bring them all
before the Court. A common relief is sought and plaintiffs
adequately represent the interests of the class.
IV.
The defendants in this action are:
(a) The Charlotte-Mecklenburg Board of Education, the
original defendant in this case, and the individual members
thereof heretofore added as defendants by order of the Court
dated June 4, 1969;
(b) The North Carolina State Board of Education, a public
body corporate of the State of North Carolina, which is charg
ed by the State Constitution and laws with the duty and re
sponsibility of the general supervision and administration of
the public schools and educational funds of the State of North
Carolina; and
(c) Dr. A. Craig Phillips, who is the elected State Super
intendent of Public Instruction of the State of North Carolina,
the administrative head of the Public School System of the
State and by force of law, a member and the Secretary of the
State Board of Education.
V.
Plaintiffs initially commenced this action on January 12,
1965, (Civil Action No. 1974) against the Charlotte-Mecklen
burg Board of Education seeking to obtain the elimination of
racial segregation in the public schools in Mecklenburg County.
VI.
On July 14, 1969, the Court entered an Order approving a
plan submitted by the Board for the desegregation of the
schools. The plaintiffs appealed and the decision was affirmed
by the United States Court of Appeals for the Fourth Circuit.
39
(Swann v Charlotte-Mecklenburg Board of Education, 369 F
2d ____ (Fourth Circuit 1966.).)
VII.
A. On September 6, 1968, the plaintiffs moved the Court
for further relief contending that the Board was required to
take further steps to disestablish the dual school system in
Mecklenburg County.
B. On April 23, 1969, the Court, following several days of
testimony heard in March, 1969, entered an Opinion and
Order Regarding the Desegregation of the Schools of Charlotte
and Mecklenburg County. The Court found that the schools
remained segregated, that the pupil assignment system and
the placement of the schools continued to racially segregate
the pupils, that the faculties had not been adequately de
segregated as previously directed by the Court in 1965 and that
the Board was to submit a plan for the desegregation of the
schools by May 15, 1969.
C. The Order directed the defendants to submit a plan for
the active and complete desegregation of the teachers within
the system to be effective in the 1969-70 school year and that
the plan should seek to apportion teachers to each school in
substantially the same ratio (3 to 1) as the ratio of white
teachers and black teachers in the system at large.
D. The defendants were also directed to submit a plan and
timetable for the active and complete desegregation of the
pupils within the system to be predominantly effective in the
fall of 1969, and to be completed by the fall of 1970.
E. The Board was directed to consider several methods of
desegregation which had been advanced by the plaintiffs, in
cluding pairing of grades and schools; feeding elementary
schools into junior and senior high schools; combining zones
and free choice where each method proceeds logically towards
eliminating segregation; bussing and other transportation;
setting up large consolidated school units freely crossing city
40
and county lines to serve larger areas; and to seek aid as may
be available from State and Federal agencies.
F. The Court thereafter upon request of defendant, granted
an extension of time until May 29, 1969, within which to file
its plan.
VIII.
A. On May 15, 1969, the plaintiffs filed a motion for a
temporary restraining order seeking to restrain all school con
struction pending approval by the Court of a school construc
tion plan designed to promote desegregation of the schools.
B. The Board filed its plan on May 28, 1969, as required
by the Order of the Court.
C. On June 4, 1969, the Court entered orders setting a date
for hearing on the adequacy of the defendant’s plan and set
forth certain questions to which the parties were to respond at
the hearing. In addition, the Court ordered that all members of
the Board of Education be added as parties defendant.
D. On June 11, 1969, the plaintiffs filed objections to the
plan submitted by the defendant and moved for civil con
tempt.
E. On June 11, 1969, the defendants moved to set aside the
Order of the Court adding the individual Board members as
defendants. On June 12, 1969, a similar motion was filed on
behalf of the defendant, William E. Poe. The plaintiffs filed a
response in opposition to these motions.
F. A hearing was held on the adequacy of the plan and on
all pending motions on June 16, 17, and 18, 1969.
IX.
A. The Court entered an Opinion and Order dated June 20,
1969, which was supplemented by additional findings on June
24, 1969.
B. The Court denied the motions of the individual Board
members to dismiss and denied plaintiffs’ motion for contempt.
41
C. The Court found that a desegregation plan had been sub
mitted to the Board by the Superintendent, but that the Board
struck out virtually all the effective provisions of the plan; that
the plan filed as to pupils and teachers was nearly identical to
the one previously found racially discriminatory; that the at
tendance areas of several of the schools were racially gerry
mandered; that the defendants had not met their burden to
show that the school construction plan would promote the
desegregation of the schools.
D. The Court found that desegregation of schools is some
thing that has to be accomplished independent of freedom of
transfer.
E. The Court ordered the defendants to prepare and sub
mit by August 4, 1969, a positive plan for the desegregation
of the Charlotte-Mecklenburg School System as originally di
rected on April 23, 1969.
X.
A. The April 23, 1969, Order of the Court contained the
following findings by the Court:
“ The ‘Neighborhood School’ Theory . . .
The neighborhood school concept may well be invalid for
school administrative purposes even without regard for
racial problems. The Charlotte-Mecklenburg School Board,
today, for example, is transporting 23,000 students on
school busses. First graders may be the largest group so
transported. If a first grader lives far enough from school
to ride a bus, the school is not part of his neighborhood.
When racial segregation was required by law, nobody
evoked the neighborhood school theory to permit black
children to attend white schools close to where they lived.
The values of the theory somehow were repudiated by the
1955 North Carolina General Assembly and still stands
repudiated in the Pupil Assignment Act of 1955-56, which
%
42
is quoted above. The neighborhood school theory has no
standing to override the Constitution.
Bussing. Under North Carolina General Statutes, § § 115-
180, the Board is expressly authorized to operate school
busses to transport school children; the state pays bus
expenses only for rural children and for some who have
been annexed into the city in recent years. This apparent
discrimination against city dwellers is reportedly under
attack in another court. This Board already transports
23,000 students to school every day out of the 32,000 who
live in the area presently eligible for bus service. The
present cost of school bussing is about $19 for bus opera
tion plus the cost of the bus which is $4,500 per bus should
not exceed $20 per pupil a year. In other words, it costs
about $40 a year per pupil to provide school bus transpor
tation, out of total per pupil school operating costs of
about $540. The income of many black families is so low
they are not able to pay for the cost of transportation out
of segregated schools to other schools of their choice.
The Board has the power to use school busses for all legiti
mate school purposes. Busses for many years were used to
operate segregated schools. There is no reasdn except emo
tion (and I confess to having felt my own share of emotion
on this subject in all the years before I studied the facts)
why school busses can not be used by the Board to pro
vide the flexibility and economy necessary to desegre
gate the schools. Busses are cheaper than new buildings;
using them might even keep property taxes down.”
B. The Court found that 95% of the blacks were concentrat
ed in the western portion of the City of Charlotte and that
official action taken on schools, zoning and planning had con
tributed to this concentration.
XI.
A. On May 7, 1969, a member of the Mecklenburg County
House delegation of the North Carolina General Assembly in
43
troduced a bill (House Bill 990, a copy of which is attached
hereto as Exhibit B) entitled “AN ACT TO PROTECT THE
NEIGHBORHOOD SCHOOL SYSTEM AND TO PRO
TECT THE INVOLUNTARY BUSSING OF PUPILS OUT
SIDE THE DISTRICT IN WHICH THEY RESIDE.” The
Bill, as subsequently amended, was ratified on July 2, 1969
(See Exhibit A ) , and is now codified as North Carolina Gen
eral Statutes §115-176.1.
B. The ratified bill, which has the same title as the bill in
troduced on May 7, 1969, provides:
1. Students cannot be excluded from any school on ac
count of race.
2. Students shall be assigned to the school within the geo
graphical district where the pupil resides, except for chil
dren attending special schools or except for any reason the
local board deems sufficient.
3. “ No student shall be assigned or compelled to attend
any school on account of race, creed, color or national
origin, or for the purpose of creating a balatice or ratio of
race, religion or national origins. Involuntary bussing of
students in contravention of this article is prohibited, and
public funds shall not be used for any such bussing.”
4. The article does not apply in temporary situations of
unsuitability of schools or over-crowding.
5. Nor does it apply to “ any assignment made pursuant
to a choice made by any pupil . . . pursuant to . . . a free
dom of choice plan voluntarily adopted by the Board.”
XII.
The defendants State Board of Education and State Super
intendent of Public Instruction are responsible to insure that
the prohibitions against involuntary student assignments and
bussing contained in North Carolina General Statutes §115-
176.1 are complied with in the Charlotte-Mecklenburg School
44
System and other administrative units throughout the State
and that public funds over which they have control not be used
for any such bussing.
XIII.
Involuntary bussing and pupil assignments which are pro
hibited by North Carolina General Statutes §115-176.1 are
necessary devices to carry out the existing orders of this and
other Federal Courts in North Carolina and to comply with
the duties imposed by the Constitution upon defendants here
in and other school officials in North Carolina. The purpose,
motive and effect of provisions of North Carolina General
Statutes §115-176.1 complained of herein, is to forbid these
defendants and other school officials in North Carolina from
complying with existing lawful orders of this and other Federal
Courts and to forbid them from complying with the require
ments of the Thirteenth and Fourteenth Amendments to the
Constitution in the State of North Carolina. The provisions
thus violate the constitutional rights of plaintiffs and others
similarly situated.
XIV.
Plaintiffs and those similarly situated and affected, on whose
behalf this action is brought are suffering irreparable injury
and will suffer irreparable injury in the future by reason of the
provisions of the Statute complained of herein. They have no
plain, adequate or complete remedy to redress the wrongs com
plained of herein other than this action for a declaratory judg
ment and injunction. Any other remedy to which plaintiffs
could be remitted would be attended by such uncertainties and
delays as to deny substantial relief, would involve a multiplicity
of suits and would cause further irreparable injury.
WHEREFORE, plaintiffs respectfully pray that, upon the
filing of this Supplemental Complaint, the Court:
1. Issue a temporary restraining order restraining the de
fendants, their agents and other persons acting in concert with
them from giving consideration or effect to and from enforcing,
45
administering, or applying the provisions contained in North
Carolina General Statutes §115-176.1 complained of herein;
2. Convene a three-judge District Court as required by 28
USC § §2281 and 2284;
3. Advance this cause on the docket and order a speedy hear
ing of this action according to law and upon such hearing:
a. Enter judgment declaring the statutory provisions com
plained of herein void as repugnant to the Thirteenth and
Fourteenth Amendments to the Constitution of the United
States;
b. Enter a preliminary and permanent injunction restrain
ing all defendants, their agents and other persons acting in
concert with them from giving consideration or effect to
and from enforcing, administering, or applying the com
plained provisions of North Carolina General Statutes
§115-176.1;
c. Allow plaintiffs their costs herein, reasonable attorneys
fees and such other and further relief as to the Court may
appear equitable and just.
Respectfully submitted,
Adam Stein
CONRAD 0. PEARSON
203 1 /2 East Chapel Hill Street
Durham, North Carolina
CHAMBERS, STEIN, FERGUSON & LANNING
216 West Tenth Street
Charlotte, North Carolina
JACK GREENBERG
JAMES M. NABRIT, III
NORMAN CHACHKIN
10 Columbus Circle
New York, New York 10019
Attorneys for Plaintiffs
46
THE NORTH CAROLINA GENERAL ASSEMBLY
1969 SESSION
RATIFIED BILL
CHAPTER 1274
HOUSE BILL 990
AN ACT TO PROTECT THE NEIGHBORHOOD SCHOOL
SYSTEM AND TO PROHIBIT THE INVOLUNTARY
BUSSING OF PUPILS OUTSIDE THE DISTRICT IN
WHICH THEY RESIDE. The General Assembly of North
Carolina do enact:
Section 1. There is hereby created a new section of Chapter
115 of the General Statutes to be codified as GS 115-176.1 and
to read as follows:
“ § 115-176.1. Assignment of pupils based on race, creed, color
or national origin prohibited. No person shall be refused ad
mission into or be excluded from any public school in this State
on account of race, creed, color or national origin. No school
attendance district or zone shall be drawn for the purpose of
segregating persons of various races, creeds, colors or national
origins from the community.
Where administrative units have divided the geographic area
into attendance districts or zones, pupils shall be assigned to
schools within such attendance districts; provided, however,
that the board of education of an administrative unit may as
sign any pupil to a school outside of such attendance district
or zone in order that such pupil may attend a school of a
specialized kind including but not limited to a vocational school
or school operated for, or operating programs for, pupils men
tally or physically handicapped, or for any other reason which
the board of education in its sole discretion deems sufficient.
No student shall be assigned or compelled to attend any school
on account of race, creed, color or national origin, or for the
purpose of creating a balance or ratio of race, religion or nation
al origins. Involuntary bussing of students in contravention of
47
this Article is prohibited, and public funds shall not be used for
any such bussing.
The provisions of this Article shall not apply to a temporary
assignment due to the unsuitability of a school for its intended
conditions or other circumstances which, in the sole discretion
of the School Board, require assignment or reassignment.
The provisions of this Article shall not apply to an applica
tion for the assignment or re-assignment by the parent, guar
dian or person standing in loco parentis of any pupil or to any
assignment made pursuant to a choice made by any pupil who
is eligible to make such choice pusuant to the provisions of a
freedom of choice plan voluntarily adopted by the board of
education of an administrative unit.”
Sec. 2. All laws and clauses of laws in conflict with this Act
are hereby repealed.
Sec. 3. If part of the Act is held to be in violation of the
Constitution of the United States or North Carolina, such part
shall be severed and the remainder shall remain in full force and
effect.
Sec. 4. This Act shall be in full force and effect upon its
ratification.
In the General Assembly read three times and ratified, this
the 2nd day of July, 1969.
H. P. TAYLOR, JR.
H. P. Taylor, Jr.
President of the Senate.
Philip P. Godwin
Philip P. Godwin
Speaker of the House of Representatives
48
NORTH CAROLINA GENERAL ASSEMBLY
1969 SESSION
HOUSE BILL 990
(Public)
Sponsors: Representatives Carson, J. Johnson, and Hege.
Referred to: Education
May 7
A BILL TO BE ENTITLED AN ACT TO PROTECT THE
NEIGHBORHOOD SCHOOL SYSTEM AND TO PRO
HIBIT THE INVOLUNTARY BUSSING OF PUPILS OUT
SIDE THE DISTRICT IN WHICH THEY RESIDE.
The General Assembly of North Carolina do enact:
Section 1. There is hereby created a new Section of Chapter
115 of the General Statutes to be codified as GS 115-183.1 and
to read as follows:
“ GS 115-183.1. Pupil assignment within neighborhood; in
voluntary bussing prohibited. Notwithstanding any provisions
of this or other Chapters, no pupil shall be assigned to a school
outside the district in which he resides except upon the appli
cation of his parent, guardian, or person standing in loco
parentis as hereinbefore provided.
Pupils residing within a district where two or more schools
are located shall be assigned to the school which is closest to
their place of residence unless application to attend elsewhere
is made by the parent, guardian, or person standing in loco
parentis. Applications for assignments outside the pupils’ school
district or to a school further from the pupils’ residence than
another school within the district shall be determined by the
city or county board as hereinbefore set forth.
The city or county board may, in its discretion and subject
to provisions as hereinbefore set forth, provide transportation
for pupils assigned either within or without the district. Provid
ed, however, students shall not be bussed or transported out
49
side their respective districts or to a school more distant from
their residences than another school within the district except
in cases where the parent, guardian, or person standing in loco
parentis has requested such assignment as hereinbefore set
forth. Public funds, whether from taxation or any other source,
shall not be used to provide transportation for pupils assigned
in contravention of this Article.”
Sec. 2. All laws and clauses of laws in conflict with this Act
are hereby repealed.
Sec. 3. If part of the Act is held to be in violation of the Con
stitution of the United States or North Carolina, such part
shall be severed and the remainder shall remain in full force and
effect.
Sec. 4. This Act shall be in full force and effect upon its
ratification.
50
IN THE
UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
JAMES E. SWANN, et al„ )
Plaintiffs, )
) CIVIL
) ACTION
THE CHARLOTTE-MECKLENBURG ) NO. 1974
BOARD OF EDUCATION, et al„ )
Defendants )
ORDER
Upon motion by plaintiffs for leave to file a supplemental
complaint and add The North Carolina State Board of Educa
tion and Dr. A. Craig Phillips, Superintendent of Public In
struction for the State of North Carolina as defendants and it
appearing to the Court that good cause is shown therefor
It is ORDERED that plaintiffs’ motion for leave to file a
supplemental complaint and to add The North Carolina State
Board of Education and Dr. A. Craig Phillips, Superintendent
of Public Instruction of the State of North Carolina as de
fendants is granted.
The United States Marshal is directed to serve the supple
mental complaint and summons upon the above named de
fendants.
This 22 day of July, 1969.
James T. McMillan
UNITED STATES DISTRICT JUDGE
51
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
JAMES E. SWANN, et al„ )
Plaintiffs, )
v. )
)
CHARLOTTE-MECKLENBURG BOARD )
OF EDUCATION, a public body corporate; )
W ILLIAM E. POE; HENDERSON BELIC; ) CIVIL
DAN HOOD; BEN F. HUNTLEY; BETSEY ) ACTION
KELLY; COLEMAN W. KERRY, JR.; JULIA ) NO. 1974
MAULDEN; SAM McNINCH, III; CARL- )
TON G. WATKINS; THE NORTH CARO- )
LINA STATE BOARD OF EDUCATION, a )
public body corporate; and DR. A. CRAIG )
PHILLLIPS, Superintendent of Public Instruc- )
tion of the State of North Carolina, )
Defendants. )
MOTION FOR LEAVE TO FILE
SUPPLEMENTAL COMPLAINT, TO ADD ADDITIONAL
DEFENDANTS AND FOR TEMPORARY RESTRAINING
ORDER
Plaintiffs, by their undersigned counsel, respectfully move
the Court for leave to file a Suplemental Complaint and for a
temporary restraining order restraining the defendants from
giving consideration or effect to and from enforcing, admini
stering, or applying certain provisions of North Carolina Gen
eral Statutes §115-176.1 and as grounds therefor show the
following: 1
1. Plaintiffs seek, by this motion, leave to file a Supple
mental Complaint, copies of which are being forwarded this
day to the Court together with summonses for service upon the
52
North Carolina State Board of Education and Dr. A. Craig
Phillips, Superintendent of Public Instruction of the State of
North Carolina, parties which the plaintiffs seek to add as
defendants to this action. Plaintiffs have served copies of the
Supplemental Complaint upon counsel for those defendants
now parties to this action.
2. The Supplemental Complaint seeks injunctive and de
claratory relief against the following prohibitions contained in
North Carolina General Statutes §115-176.11
“ No student shall be assigned or compelled to attend any
school on account of race, creed, color or national origin, or
for the purpose of creating a balance or ratio of race,
religion or national origins. Involuntary bussing of stu
dents in contravention of this Article is prohibited, and
public funds shall not be used for any such bussing.”
3. For reasons stated more fully in the Supplemental Com
plaint, plaintiffs allege that the purpose, motive and effect of
the statutory provisions complained of therein is to forbid the
defendants, now parties to this action, and other school officials
in the State of North Carolina from complying with existing
lawful orders of this and other courts and to forbid them from
complying with the requirements of the Thirteenth and Four
teenth Amendments to the Constitution of the United States.
Plaintiffs allege that this is so because compulsory assignments
and involuntary bussing, prohibited by North Carolina General
Statutes §115-176.1, are necessary devices for complying with
the orders of this Court entered on April 23, 1969, and June 20,
1969, and for complying with constitutional requirements.
4. Plaintiffs seek to add as parties-defendant, the North 1
1. North Carolina General Statutes §115-176.1 was enacted as Chap
ter 1274 of the Session Laws of the 1969 North Carolina General
Assembly which was ratified on July 2, 1969. A copy of the Rati
fied Bill is attached to the Supplemental Complaint as Exhibit
A.
53
Carolina State Board of Education and Dr. A. Craig Phillips,
the Superintendent of Public Instruction. These parties are
charged by the constitution and laws of the State of North
Carolina with the general supervision and administration of
the public schools and the disbursement of public funds to the
various public schools in North Carolina. They are thus re
quired by North Carolina law to insure that public funds are
not spent for involuntary bussing and pupil assignments. They
are therefore proper and necessary parties to an adjudication
of the constitutional issues raised by the plaintiffs in the Sup
plemental Complaint. In addition, they are proper parties to
this proceeding because, they, together with local school of
ficials have an affirmative duty to take active steps to dis
establish the dual school system in Charlotte-Mecklenburg
County and other administrative units throughout the State.
5. Plaintiffs, in their Supplemental Complaint, request that
a three-judge Court be constituted to determine their constitu
tional challenge to a statute of state-wide application. This
motion for a temporary restraining order is addressed to the
single District Court judge hearing this case pursuant to 28
U.S.C. §2284 (3).
6. Plaintiffs allege that, unless immediately restrained, the
defendants will apply the statutory provisions complained of
herein and will thereby fail to comply with the orders of this
Court of April 23 and June 20, 1969, thus causing plaintiffs
irreparable damage. In support of this allegation, the plaintiffs
attach hereto the affidavit of Reginald A. Hawkins, the next
friend of plaintiffs in this action.
WHEREFORE, plaintiffs respectfully pray that they be
granted leave to file their Supplemental Complaint, that they
be allowed to add the North Carolina State Board of Education
and Dr. A. Craig Phillips, Superintendent of Public Instruction
of the State of North Carolina as defendants in this action and
that all defendants be restrained from enforcing the complained
of provisions of North Carolina General Statutes §115-176.1.
54
Respectfully submitted,
/ s / Adam Stein
CONRAD D. PEARSON
203 1/2 East Chapel Hill Street
Durham, North Carolina
CHAMBERS, STEIN, FERGUSON & TANNING
216 West Tenth Street
Charlotte, North Carolina
JACK GREENBURG
JAMES M. NABRIT, III
NORMAN CHACHKIN
10 Columbus Circle
New York, New York 10019
Attorneys for Plaintiffs
55
IN THE
UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
JAMES E. SWANN, et ah,
Plaintiffs, )
CHARLQTTE-MECKLENBURG BOARD )
OF EDUCATION, a public body corporate; )
WILLIAM E. POE; HENDERSON BELK; )
DAN HOOD; BEN F. HUNTLEY; BETSEY )
KELLY; COLEMAN W. KERRY, JR.; JULIA )
MAULDEN; SAM McNINCH, III; CARL- ) CIVIL
TON G. WATKINS; THE NORTH CARO- ) ACTION
LINA STATE BOARD OF EDUCATION, a ) NO. 1974
public body corporate; and DR. A. CRAIG )
PHILLIPS, SUPERINTENDENT OF PUB- )
LIC INSTRUCTION OF THE STATE OF )
NORTH CAROLINA, )
Defendants. )
ANSWER OF THE DEFENDANTS, THE NORTH
CAROLINA STATE BOARD OF EDUCATION AND
SUPERINTENDANT OF PUBLIC INSTRUCTION
OF THE STATE OF NORTH CAROLINA, TO THE
SUPPLEMENTAL COMPLAINT.
(1) Answering the allegations of Paragraph I of the Supple
mental Complaint, these answering defendants allege that the
order allowing the plaintiffs to file a supplemental complaint
is based upon a motion which was filed in the Office of the
Clerk of the Federal Court for the Western District on July
22, 1969, and the order of the Judge of the District Court was
also filed on the same date, July 22, 1969, and said order allow
ing said Supplemental Complaint to be filed is void, invalid and
,56
contrary to due process of law for that the North Carolina
State Board of Education and the State Superintendent of
Public Instruction were never given an opportunity to appear
before the Court and resist said Motion, but, to the contrary,
the same is an exparte order entered without service upon the
said defendants of any notice or copy of said motion prior to
the granting of said order; it is admitted that there is quoted
in Paragraph I of the Supplemental Complaint a portion of
Chapter 1274 of the Session Laws of 1969 of the General As
sembly of this State; it is denied that the plaintiffs are entitled
to any preliminary and permanent injunction as against these
State defendants or that the plaintiffs are entitled to a declara
tory judgment as against these defandants.
(2) Answering the allegations of Paragraph II of the plain
tiffs’ Supplemental Complaint, it is denied that this Court has
jurisdiction as against these State defendants under the Federal
statutes cited in said paragraph or under the constitutional pro
visions cited in said paragraph; it is denied that G. S. 115-176.1
is unconstitutional and invalid or that the plaintiffs are entitled
to any declaratory judgment or the convening of a 3-judge
federal court; the allegations of Paragraph II are, therefore,
untrue, and are denied.
(3) The allegations of Paragraph III are untrue and are
denied except the allegation as to the status of the plaintiffs
being the same plaintiffs who instituted the original action; it
is denied that the plaintiffs are entitled to maintain a class
action as against these State defendants.
(4) Answering the allegations of Paragraph IV, these State
defendants have nothing to do with the defendants named as
the Charlotte-Mecklenburg Board of Education and the in
dividual members thereof, and, therefore, are not required to
answer the allegations of subparagraph (a) of Paragraph IV
of the Complaint; it is alleged, therefore, that the duties of
North Carolina State Board of Education and of Dr. A. Craig
Phillips are fixed by State statutes, and, therefore, the allega
tions of subparagraphs (b) and (c) are denied.
57
(5) The allegations of Paragraph V are admitted.
(6) The allegations of Paragraph VI are admitted.
(7) Answering the allegations of Paragraph VII, these State
defendants allege that the same relate to a motion for further
relief filed against the Charlotte-Mecklenburg Board of Educa
tion, hearings on same, orders to submit plans of desegregation
and matters with which these State defendants are not con
cerned, and these State defendants allege that they are not re
quired to answer said Paragraph VII.
(8) The allegations of Paragraph VIII of the Complaint
relate to matters with which these State defendants are not
concerned and of which they have no knowledge or informa
tion sufficient to form a belief as to the truth of same, and as
to these State defendants the allegations of said paragraph are,
therefore, denied.
(9) Answering the allegations of Paragraph IX , these State
defendants allege that said allegations relate to matters that
these defendants are not concerned with and with which
these State defendants have not knowledge or information
sufficient to form a belief to form the truth of same and as to
these defendants said paragraph is, therefore, denied.
(10) Answering the allegations of Paragraph X , the State
defendants allege that whatever appears in the orders of the
Court previous to the filing of this Supplemental Complaint are
matters or record, and, therefore, they are not required to an
swer as to same.
(11) Answering the allegations of Paragraph X I, these State
defendants allege that the General Assembly of North Carolina
at its Session of 1969 enacted into law an Act which is now
codified as G. S. 115-176.1 and that said Act was ratified on
July 2, 1969; that said Act speaks for itself as to its contents,
and except as herein admitted the allegations of Paragraph
X I are untrue and are denied.
(12) The allegations of Paragraph X II are untrue and are,
therefore, denied.
58
(13) The allegations of Paragraph XTII are untrue and are,
therefore, denied.
(14) The allegations of Paragraph X IV are untrue and are,
therefore, denied.
WHEREFORE, having fully answered, these State de
fendants pray the Court that this action as to the State de
fendants be dismissed, that the plaintiffs take nothing by their
action as to these State defendants and that the State defen
dants have and recover their costs to be taxed by the Clerk of
this Court.
Robert Morgan
Attorney General of North Carolina
Ralph Moody
Deputy Attorney General
Andrew A. Vanore, Jr.
Staff Attorney
P. O. Box 629
Justice Building
Raleigh, North Carolina 27602
59
IN THE
UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
JAMES E. SWANN, et ah, )
Plaintiffs, )
v. )
CHARLOTTE-MECKLENBURG BOARD \
OF EDUCATION, a public body corporate; ̂
WILLIAM E. POE; HENDERSON BELK; '
DAN HOOD; BEN F. HUNTLEY; BETSEY
KELLY; COLEMAN W. KERRY, JR.; JULIA
MAULDEN; SAM McNINCH, III; CARL
TON G. WATKINS; THE NORTH CARO
LINA STATE BOARD OF EDUCATION, a '
public body corporate; and DR. A. CRAIG '
PHILLIPS, Superintendent of Public Instruc- ̂
tion of the State of North Carolina, '
Defendants, .
and '
HONORABLE ROBERT W. SCOTT, Gover- )
nor of the State of North Carolina; HONOR- )
ABLE A. C. DAVIS, Controller of the State )
Department of Public Instruction; HONOR- )
ABLE WILLIAM K. McLEAN, Judge of the )
Superior Court of Mecklenburg County; TOM )
B. HARRIS; G. DON ROBERSON; A. )
BREECE BRELAND; JAMES M. POSTELL; )
WILLIAM E. RORIE, JR.; CHALMERS R. )
CARR; ROBERT T. WILSON; and the CON- )
CERNED PARENTS ASSOCIATION, an un- )
incorporated association in Mecklenburg Coun- )
ty; JAMES CARSON and WILLIAM H. )
BOOE, )
Additional )
Parties-Defendant. )
CIVIL
ACTION
NO. 1974
60
MOTION TO ADD ADDITIONAL PARTIES
DEFENDANT AND FOR FURTHER RELIEF
On February 5, 1970, this Court entered an order directing
the Charlotte-Mecklenburg Board of Education and the in
dividual members of the Board to proceed immediately to
desegregate the public schools of Charlotte-Mecklenburg Coun
ty. The Court directed that students be assigned to the various
schools under plans presented and adopted by the Board and a
plan prepared by the Court’s consultant, Dr. John A. Finger.
The order provided for changing attendance zones of some
schools, pairing of some schools, and transportation of students
living beyond “ walking distance” from the schools to which
assigned. The order further directed that the plan be imple
mented for elementary schools no later than April 1, 1970 and
for secondary schools no later than May 4, 1970. The School
Board was specifically directed to begin immediately with steps
to implement the plan.
Prior to the filing of the order on February 5, 1970, Tom B.
Harris, G. Don Roberson, A. Breece Breland, James M. Pos
ted, William E. Rorie, Jr., Chalmers R. Carr, and Robert T.
Wilson, on their behalf and on the behalf of the Concerned
Parents Association, an unincorporated association, brought a
proceeding in the Superior Court of Mecklenburg County, by
their attorney, William H. Booe, to obstruct and prevent the
School Board from implementing the orders directed by this
Court. They obtained from the Superior Court of Mecklenburg
County an ex parte order specifically enjoining the Superin
tendent from implementing the order of this Court directing
the Board to pay the expenses and fees of the Court consultant.
Following the order of February 5, 1970, Tom B. Harris, G.
Don Roberson and others of the Concerned Parents Associa
tion have sought and are seeking by various means to obstruct
and prevent implementation of the Court’s orders. On February
12, 1970, they obtained fcom the Honorable William K. M c
Lean, Judge Presiding in the Superior Court of Mecklenburg
County, an order enjoining the School Board from spending
61
any funds to purchase and operate school buses as directed by
this Court.
The Honorable Robert II. Scott, Governor of the State of
North Carolina, on February 11 and 12, 1970, objected to the
Court’s order and directed that no public funds, state or local,
be expended for the purpose of implementing the order. The
Honorable Dr. A. Craig Phillips, State Superintendent of
Public Instruction, and the North Carolina State Board of
Education, defendants herein, joined with the Governor in
objecting to the Court’s order and in directing that no public
funds be used for the purpose of implementing the order.
On February 6, 1970, Honorable James Carson, a member of
the Mecklenburg Delegation to the North Carolina House of
Representatives, threatened to and is preparing to file similar
proceedings in the State Court of North Carolina to obstruct
and thwart the enforcement of the Court’s orders.
These parties, along with divers others, are seeking to ob
struct and prevent implementation of the Court’s orders direct
ing compliance by the school authorities with their constitu
tional obligations.
Despite the Court’s directive to the School Board to pro
ceed forthwith with all necessary steps to implement the order,
the School Board, the State Superintendent and the State
Board of Education have failed to do so. Plaintiffs are advised
that no efforts have been made to secure the necessary buses
for transporting students as directed by the Court. Plaintiffs
are also advised that such buses as may be necessary can be
ordered and manufactured by the time directed by the Court
for implementation of the plan. The failure of the School Board
to act now in securing the necessary facilities for transportation
may prevent desegregation of the schools in the time directed.
Plaintiffs are advised, believe and so allege that the activities
and conduct of the defendants and each of them are pursuant
to a design to thwart, impede and prevent desegregation of the
public schools of Charlotte-Mecklenburg County and that the
62
acts, activities and conduct of the defendants were calculated
and intended to incite disobedience of the law and the over
throw of law and order and to coerce, intimidate, and compel
school officials from performance of their constitutional re
sponsibilities to desegregate the public schools of this system.
In order to insure full implementation of the Court’s order
within the time directed, plaintiffs, by their undersigned coun
sel, respectfully move the Court that the following parties be
added as parties-defendant in this proceeding:
Honorable Robert H. Scott, Governor of the State of North
Carolina;
Honorable A. C. Davis, Controller of the State Department
of Public Instruction;
Honorable William K. McLean, Judge of the Superior Court
of Mecklenburg County;
Tom B. Harris, G. Don Roberson, A. Breece Breland, James
M. Posted, William E. Rorie, Jr., Chalmers R. Carr, Robert T.
Wilson, and the Concerned Parents Association, an unincorpor
ated association in the Mecklenburg County;
James Carson and William H. Booe.
Plaintiffs further pray the Court for a temporary and per
manent injunction dissolving the injunctive orders of the Sup
erior Court of Mecklenburg County entered in the proceeding
of Tom B. Harris, et al. v. William C. Self, et al., 70 CVS 1097,
and temporarily and permanently restrain any further proceed
ings in the action.
Plaintiffs further pray the Court for a temporary and per
manent injunction against all defendants and all other parties
having notice of the Court’s order enjoining all parties in this
action and all parties having notice of the orders of this Court
from initiating or proceeding with any action in any State
Court which has the purpose or effect of interfering with out
standing orders in this cause.
63
Plaintiffs further pray that the Court enter a temporary and
permanent injunction restraining the Governor, the State
Board of Education, the Controller of the State Department of
Public Instruction, and the State Superintendent of Public
Instruction from denying State funds or taking any other steps
which would prevent or tend to prevent the implementation of
the orders of this Court.
Plaintiffs further pray the Court for a temporary and per
manent injunction directing the local Board of Education, its
members individually, the Governor of the State, the State
Board of Education, the State Superintendent of Public In
struction, and all other persons having any authority or re
sponsibility in the administration of the public schools in
Charlotte-Mecklenburg County to proceed forthwith with all
necessary steps to implement the orders of this Court, including
the provision requiring transportation of students living more
than “ walking distance” from the schools to which they are
assigned. Plaintiffs further pray the Court for a temporary and
permanent injunction restraining all defendants from taking
any steps or action which would inhibit or prevent or tend to
prevent compliance with the orders of this Court.
Plaintiffs further pray the Court that they be allowed their
costs in this proceeding and reasonable counsel fees.
Plaintiffs further pray that the Court direct the United
States Marshal to personally serve a copy of the complaint, the
amended complaint, and all orders, including the injunctive
order prayed for herein, upon all defendants named herein.
64
Respectfully submitted,
CONRAD O. PEARSON
203 1/2 East Chapel Hill Street
Durham, North Carolina
CHAMBERS, STEIN, FERGUSON AND FAN
NING
216 West Tenth Street
Charlotte, North Carolina
JACK GREENBERG
JAMES M. NABRIT, III
NORMAN CHACHKIN
10 Columbus Circle
New York, New York 10019
Attorneys for Plaintiffs
65
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
Charlotte Division
Civil Action No. 1974
JAMES E. SWANN, et al,
Plaintiffs,
-vs-
CHARLOTTE-MECKLENBURG B O A R D
OF EDUCATION, a public body corporate;
W ILLIAM E. POE; HENDERSON BELK;
DAN HOOD; BEN F. HUNTLEY; BETSEY
KELLY; COLEMAN W. KERRY, JR.; JULIA
MAULDEN; SAM McNINCH, III; CARL
TON G. WATKINS; THE NORTH CARO
LINA STATE BOARD OF EDUCATION, a
public body corporate; and DR. A. CRAIG
PHILLIPS, Superintendent of Public Instruc
tion of the State of North Carolina,
Defendants,
and
HONORABLE ROBERT W. SCOTT, Gover
nor of the State of North Carolina; HONOR
ABLE A. C. DAVIS, Controller of the State
Department of Public Instruction; HONOR
ABLE WILLIAM K. McLEAN, Judge of the
Superior Court of Mecklenburg County; TOM
B. HARRIS; G. DON ROBERSON; A.
BREECE BRELAND; JAMES M. POSTELL;
WILLIAM E. RORIE, JR.; CHALMERS R.
CARR; ROBERT T. WILSON; and the CON
CERNED PARENTS ASSOCIATION, an un
incorporated association in Mecklenburg Coun
ty; JAMES CARSON and W ILLIAM H.
BOOE,
Additional Parties-Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ORDER
66
Upon motion duly made, IT IS HEREBY ORDERED that
the following persons and organizations described in the peti
tion of the plaintiffs as additional parties-defendant be, and
they are hereby made parties herein:
HONORABLE ROBERT W. SCOTT, Governor of the State
of North Carolina
HONORABLE A. C. DAVIS, Controller of the State De
partment of Public Instruction
HONORABLE W ILLIAM K. McLEAN, Judge of the Sup
erior Court of North Carolina
TOM B. HARRIS, Charlotte, North Carolina
G. DON ROBERSON, Charlotte, North Carolina
A. BREECE BRELAND, Charlotte, North Carolina
JAMES M. POSTELL, Charlotte, North Carolina
W ILLIAM E. RORIE, JR., Charlotte, North Carolina
CHALMERS R. CARR, Charlotte, North Carolina
ROBERT T. WILSON, Charlotte, North Carolina
CONCERNED PARENTS ASSOCIATION, an unincorpor
ated association in Mecklenburg County, North Carolina
JAMES H. CARSON, JR., Attorney, Charlotte, North Caro
lina
W ILLIAM H. BOOE, Attorney, Charlotte, North Carolina
It is directed that service of the following documents be
made immediately by certified mail, return receipt requested,
upon the additional parties hereby made:
1. MOTION TO ADD ADDITIONAL PARTIES DEFEN
DANT AND FOR FURTHER RELIEF, with attached
POINTS OF AUTHORITY, served by plaintiffs on Feb
ruary 13, 1970.
2. NOTIFICATION AND REQUEST FOR DESIGNA-
67
TION OF THREE-JUDGE COURT, dated February 19,
1970, including exhibits referred to therein, as follows:
Exhibit A— OPINION AND ORDER filed December
1, 1969.
Exhibit B— ORDER filed February 5, 1970.
Exhibit C— ORDER filed December 2, 1969.
Exhibit D— Complaint, amended complaint and two
orders entered by Judge William K. McLean on Feb
ruary 12, 1970, in suit pending in the General Court of
Justice, Superior Court Division, Mecklenburg County,
North Carolina, bearing No. 70-CVS-1097.
Exhibit E— Statement made by Governor Robert W.
Scott on February 11, 1970.
Exhibit F— Letter dated February 12, 1970, written by
Governor Robert W. Scott to Dr. W. L. Turner, Direc
tor of the North Carolina Department of Administra
tion.
Exhibit G— Statement made by Dr. A. Craig Phillips on
February 11, 1970.
3. DESIGNATION OF THREE-JUDGE COURT, filed
February 24, 1970.
The plaintiffs are directed to prepare and file on or before
Monday, March 2, 1970, proposed findings of fact and con
clusions of law and a proposed order, and a brief in support of
their position.
The other parties are directed to prepare and file on or be
fore Friday, March 6, 1970, proposed findings of fact and con
clusions of law and a proposed order, and a brief in support
of their position.
If there is any additional evidence which any party desires
to introduce by deposition or affidavit, the court will receive
such evidence, in written form, up to and including Friday,
68
March 6, 1970. It is not contemplated that any more oral
testimony in a court hearing will be necessary.
The hearing before the three-judge court will not be an
evidentiary hearing, but will be a hearing based upon the record
which has been developed by the time of the hearing.
This the 25th day of February, 1970.
James B. McMillan
United States District Judge
69
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
Charlotte Division
JAMES E. SWANN, el al.,
Plaintiffs,
CHARLOTTE-MECKLENBURG B O A R D
OF EDUCATION; NORTH CAROLINA
STATE BOARD OF EDUCATION; DR. A.
CRAIG PHILLIPS, Superintendent of Public
Instruction of the State of North Carolina, et
als.,
Defendants.
AND
HONORABLE ROBERT H. SCOTT, Gover
nor of the State of North Carolina; HONOR
ABLE A. C. DAVIS, Controller of the State
Department of Public Instruction; HONOR
ABLE W ILLIAM K. McLEAN, Judge of the
Superior Court of Mecklenburg County, et als.,
Additional Parties Defendant.
ANSWER TO MOTION TO ADD ADDITIONAL PARTIES
DEFENDANT AND FOR FURTHER RELIEF
THE DEFENDANTS, THE NORTH CAROLINA STATE
BOARD OF EDUCATION, DR. A. CRAIG PHILLIPS,
SUPERINTENDENT OF PUBLIC INSTRUCTION, ROB
ERT H. SCOTT, GOVERNOR OF THE STATE OF NORTH
CAROLINA, A. C. DAVIS, CONTROLLER OF THE
STATE DEPARTM ENT OF PUBLIC INSTRUCTION,
AND W ILLIAM K. McLEAN, JUDGE OF THE SUP
ERIOR COURT OF MECKLENBURG COUNTY (herein
after referred to as: STATE OFFICIALS), ANSWERING
THE MOTION TO ADD ADDITIONAL PARTIES DE
FENDANT, AND FOR FURTHER RELIEF, FOR THEIR
ANSWERS ALLEGE:
)
)
)
)
)
)
)
)
) CIVIL
) ACTION
) NO. 1974
)
70
(1) It is admitted that on February 5, 1970, the District
Court of the United States for the Western District of North
Carolina entered an order directing the Charlotte-Mecklenburg
Board of Education to desegregate the public schools admin
istered by said Board; it is further admitted that the Court
ordered that students be assigned to the various public school
facilities of said Board under plans adopted by the Board and
by the Court’s consultant, and all orders and plans are referred
to and made a part of this allegation not for the purpose of
acquiescing therein or admitting the validity thereof, but for
the purpose of showing the action taken by the Court and the
action taken by the Board; it is denied that any action to which
the motion of the plaintiffs refers was taken by the Charlotte-
Mecklenburg Board of Education as a voluntary act on the
part of said Board, but, to the contrary, these defendants allege
that each such action taken was compelled by orders of the
Court; the plaintiffs themselves in their allegations refer to
orders of the Court and directives of the Court.
(2) It is admitted that a group of individuals, an unin
corporated association by the name of “ Concerned Parents As
sociation” , instituted an action in the Superior Court of Meck
lenburg County and obtained an order from a Superior Court
judge enjoining the superintendent from paying expenses and
fees of the Court consultant; that said civil action now pending
in the Superior Court of Mecklenburg County and all its plead
ings, orders and proceedings are hereby referred to and made
a part of this Answer; it is further alleged that said “ Concerned
Parents Association” had a right under the laws of the State
of North Carolina to institute said action, which is related to
the use of public funds, including the proceeds of taxes collect
ed from and paid by members of the said Association and other
persons similarly situated; it is admitted that said civil action
in the Superior Court of Mecklenburg County was instituted
prior to the filing of the Order of the District Court of the
United States on February 5, 1970.
(3) It is admitted that on February 12, 1970, the “ Concern
71
ed Parents Association” obtained an order from the Judge of
the Superior Court of Mecklenburg County, enjoining the
Charlotte-Mecklenburg Board of Education from spending any
public funds to purchase and operate school buses for the pur
pose of redressing any racial imbalance. It is denied, however,
that said Order was obtained to obstruct the enforcement of
any lawful order of the District Court of the United States, but,
to the contrary, said Order was obtained to prevent the busing
of school children for the purpose of changing the racial com
position of the student enrollment in specific public schools by
compelling school children to attend a specific public school
contrary to the will of their parents solely because of the race
of such children, contrary to the Fourteenth Amendment to the
Constitution of the United States as construed in BROWN v.
BOARD OF EDUCATION, 347 U. S. 483, 98 L. ed. 873, 74
S. Ct. 686, 38 ALR 2d 1180, and contrary to the Civil Rights
Act of 1964, and Chapter 1274 of the Session Laws of 1969,
enacted by the General Assembly of North Carolina; that the
Superior Court of Mecklenburg County had a legal right to
pass upon the statutes and status of busing pupils and to enter
the order therein complained of by the plaintiffs, and the
prosecution of the action in the State courts is not subject to
injunction or restraint on the part of the District Court of the
United States; that the action in the State courts is lawfully
brought therein to enjoin the unlawful expenditure of State
funds and County funds, these being a matter of State law over
which the United States District Court has no jurisdiction.
(4) It is admitted that Robert H. Scott, Governor of the
State of North Carolina, ordered and directed that no public
State funds be expended for the busing of public school pupils
to redress racial imbalance as he had a right and duty to do
under the Executive Budget Act of the State of North Carolina
inasmuch as he was dealing with and preventing an unlawful
expenditure of the State’s public funds which are subject to the
control of the State of North Carolina and its administrative
authorities; that the lawful use which may be made of such
funds is a matter of State law and involves no question arising
72
under the Constitution or laws of the United States; it is fur
ther admitted that the State Superintendent of Public Instruc
tion of North Carolina and the defendant, North Carolina State
Board of Education, approve the action taken by the Gover
nor of North Carolina in the use of State funds, which, it is
alleged, do not belong to the Federal Government, and which
are not subject to allocation by agents of the Federal Govern
ment; that said action was taken pursuant to the statutes
above referred to, which prohibit the use of the said State funds
for the busing of public school children for the mere purpose
of redressing racial imbalance.
(5) That these defendants, State officials, do not know the
motives and intentions of the Honorable James Carson, a
member of the House of Representatives of the State of North
Carolina, and, therefore, for lack of information and belief
deny the allegations related to the Honorable James Carson
and also deny the allegations as to the motives and intentions
of other persons in relation to said Court order for lack of
information and belief.
(6) It is denied that the North Carolina State Board of
Education and the State Superintendent of Public Instruction
have any statutory duties or any duties at all in regard to the
transportation of school children; it is further alleged that the
local boards of education are under no legal duty to provide
transportation for school children to, from and between their
homes and the schools in which said children are enrolled; that
said Board of Education has no authority or control over the
transportation of pupils in the public school system, and
neither the Governor of North Carolina nor the North Caro
lina State Board of Education is required or permitted to al
locate funds for public school transportation of pupils for pur
poses prohibited by Federal and State statutes; that these de
fendants, State officials, do not know the intentions of the
Charlotte-Mecklenburg Board of Education as to providing
school buses for the transportation of school pupils to redress
racial imbalance, and, therefore, deny all allegations relating
to said subject.
73
(7) It is denied that these defendants are seeking to pre
vent desegregation of the public schools administered by the
Charlotte-Mecklenburg Board of Education or to thwart any
proper activity of this Court; it is further denied that these
defendants are inciting disobedience of the law and seeking
the overthrow of law and order or to coerce, or compel, school
officials to desist or refrain from any duty imposed upon them
by the Constitution or laws of the United States; that these
defendants, State officials, are informed and believe, and so
allege, that they have no authority to and may not lawfully be
required to use State public funds contrary to the provisions of
Chapter 1274 of the Session Laws of 1969, which expressly pro
hibits the use of such funds for the purpose of financing the
transportation of public school children to, from and between
their homes and the school wherein they are enrolled for the
purpose of changing the ratio of the children of the respective
races attending such schools or any other school; that A. C.
Davis is Controller of the State Board of Education and not
the Controller of the State Department of Public Instruction;
that the said Davis is an administrative officer only, and, as
such, does not determine the policy of the State of the ex
penditure of public State funds for public school transportation
and is not a proper and necessary party to this action; that the
Governor of North Carolina is not a proper and necessary party
to this action and should not be added as a party defendant,
and such addition would constitute a suit against the State as
prohibited by the Eleventh Amendment to the Constitution of
the United States; that the Honorable William K. McLean is
a Judge of the Superior Court of the State of North Carolina,
and, as such, has the lawful right, authority and duty to hear
and determine any and all civil actions instituted in any such
Court over the sessions of which he is lawfully assigned to pre
side; that the action instituted on or about February 12, 1970,
in the Superior Court of Mecklenburg County, to which refer
ence is made in the motion of the plaintiffs in the present
action, was lawfully instituted therein and it is the lawful right,
authority and duty of the Honorable William McLean, or such
74
other judge as may from time to time be lawfully assigned to
preside over the sessions of said Court, to hear and determine,
subject to lawful appellate review, all issues of law and fact
which have arisen or may arise in such action, and he may not
lawfully be restrained from the lawful exercise of such juris
diction and authority by the Order of this Court; that under
the appropriate Federal statute of the United States Code (28
USCA 2283) he is immune from any restraint on the part of
this Court which would prohibit him from hearing and law
fully determining the issues of law and fact in civil actions law
fully initiated in the said Superior Court, including said action
to which the Motion of the plaintiffs in this action refers, and
he is immune from restraint on the part of the Federal Court
in the exercise by him of the said jurisdiction and authority to
hear and determine, subject to lawful appellate review, all is
sues of law and fact arising in the said action, and, therefore, he
may not lawfully be made a party to this action in this Court.
(8) That the plaintiffs are not entitled to a temporary or
permanent injunction restraining the actions of these defen
dants, said State officials, nor are the plaintiffs entitled to any
mandatory injunction requiring these defendants, State of
ficials, to proceed with providing transportation to or for public
school students; that all allegations as to issuance of injunctions
relating to these defendants, State officials, are untrue and are
denied; it is denied that as to these defendants, State officials,
the plaintiffs are entitled to any costs or counsel fees.
WHEREFORE, having fully answered said Motion, these
defendants, State officials, pray the Court as follows:
(a) That as to these defendants, State officials, the said
Motion be dismissed;
(b) that all applications and requests for injunctions relating
to the busing of the public school pupils for the redress of racial
imbalance, or for any other purpose, as to these defendants, be
dismissed and denied;
(c) that the plaintiffs’ request for costs and counsel fees as
to these defendants be denied;
75
(d) for such other and further relief as to the Court may
seem proper and just, and that these defendants recover their
costs incurred herein.
Robert Morgan
Attorney General of North Carolina
Ralph Moody
Deputy Attorney General
Andrew A. Vanore, Jr.
Assistant Attorney General
76
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
Charlotte Division
James E. Swann, et al, )
Plaintiffs, )
j CIVIL 1974
The Charlotte-Mecklenburg Board of Educa- )
tion, et al, )
Defendants. )
DEPOSITION OF:
JAMES H. CARSON, JR.
March 11, 1970
By consent this deposition was taken on March 11, 1970, at
11:15 A.M., in the offices of Chambers, Stein, Ferguson &
Lanning, Attorneys at Law, 216 W. 10th Street, Charlotte,
North Carolina.
By consent all objections except as to the form of the ques
tion are waived and objections will be made and ruled on at the
time of trial. With the consent of all counsel, signature is waiv
ed.
APPEARANCES:
Plaintiffs—Julius L. Chambers, Esq.
Attorney at Law
Charlotte, North Carolina
Adam Stein, Esq.
Attorney at Law
Charlotte, North Carolina
Defendants—William J. Waggoner, Esq.
Attorney at Law
Charlotte, North Carolina
JAMES H. CARSON, Jr.,
having first been duly sworn, was examined and testified as
follows:
77
BY MR. CHAMBERS:
Q Would you state your name, please?
A James H. Carson, Jr.
Q What is your address, Mr. Carson?
A 419 Ellsworth Road, Charlotte.
Q What is your occupation?
A I am an attorney.
Q Did you serve as a member of the Mecklenburg delegation
to the North Carolina Legislature during the 1969 session?
A Yes, I served as a member from the 36th House District
which is composed of only Mecklenburg County.
Q How long have you served in the Legislature?
A I was elected for the first time in 1966 and re-elected in 1968.
I ’m still in office.
Q Did you during the session of the 1969 Legislature have oc
casion to propose a bill that has now been enacted and is
known as North Carolina General Statute Section 115-176.1?
A Yes, I did.
Q I show you a document which we would like to have marked
as Plaintiff’s Exhibit 1 for Mr. Carson’s deposition. (Carson
Deposition Exhibit #1 marked for identification and attach
ed to all copies of this deposition.) I ’ll ask you if you would
state whether that is a copy of the bill that you introduced.
A The exhibit consists of several items, one of which is a copy
of the bill I introduced.
Q Would the last two pages of that exhibit be the bill as you
originally introduced it?
A Yes, that’s correct, the one entitled House Bill DRH 255.
Q And they are the last two pages on the exhibit?
78
A Yes, that’s correct.
Q The third page from the back, which is the fifth page in the
exhibit from the front, headed Amendment, dated June 16,
’69, would this be a proposed amendment that was also in
corporated in the bill?
A Yes, it would.
MR. WAGGONER: May I have a copy of this?
MR. CHAMBERS: I’m sorry.
Q Now, the third and fourth pages from the front, would you
state what these two pages are?
A This is a House Committee Substitute for House Bill 990,
which is the same bill.
Q Is it amended in any way from the bill as you originally
introduced it?
A Yes. A Committee Substitute is used when a bill is rewritten
to any degree to get a Committee Substitute rather than the
original bill.
Q What changes were made in the Committee Substitute?
A I would have to read both bills to tell you the exact changes.
You can see they are both here and the changes included in
each of them were made in the Committee Substitute.
Q The first page and the second page of this exhibit, are these
also amendments that were added to the bill?
A Yes. These are two amendments that were put into the Com
mittee Substitute when it was considered in the Senate.
Q And were these amendments as indicated on the first two
pages adopted by the House and the Senate?
A Yes, they were. They were adopted by the Senate and the
House concurred in the Senate amendments.
Q Now, when did you initially propose the bill that sub
sequently became General Statute 115-176.1?
79
A By proposed, do you mean when did I introduce it?
Q Yes.
A I do not recall the exact date.
Q Do you recall the month?
A Of my own knowledge, no, I do not recall the month.
Q I show you another document which we would like marked
as Plaintiff’s Exhibit 2 for purposes of Air. Carson's deposi
tion. (Carson Deposition Exhibit #2 marked for identifica
tion and attached to all copies of this deposition.) Now, this
document on the first page contains a news article headed
“House Gets Busing Bill”, June 12, 1969. To your know
ledge would the bill have been presented to the House in
June of 1969?
A To the best of my knowledge it was before the month of
June when it was first introduced, either in April or May
and I don’t recall which month.
Q Do you recall whether it was subsequent to the Court’s order
entered in this case on April 23, 1969?
A No, I do not recall. I believe it was subsequent to that but
I do not recall.
Q Now, as initially proposed, what was your purpose or what
were you trying to remedy in proposing this bill?
MR. WAGGONER: Objection.
A The purpose of the bill, I think, could be best summed up
by the title of the bill, that is, a bill to protect the neighbor
hood school system and to prohibit the involuntary busing
of pupils outside the district in which they reside.
Q As initially proposed did you intend to prohibit considera-
ation of race in the assignment of pupils?
MR. WAGGONER: Objection.
80
A The original bill does not mention race. It doesn’t prohibit
it or do anything else with it.
Q Are you familiar with the present provisions of the State
in providing transportation for students?
A I ’m vaguely familiar with them, yes. I ’m not an expert on
the subject.
Q Do you know whether the State presently provides trans
portation for students?
A Yes, I do know that under certain circumstances they do.
Q Do you recall what circumstances?
A To the best of my knowledge they provide transportation
for pupils outside cities who live a mile and a half or more
than a mile and a half from the school to which they are
assigned and inside of cities in areas which have been recent
ly incorporated, I believe since ’57, the same provision
applies.
Q Are you familiar with the North Carolina constitutional pro
vision that required separation of the races in public educa
tion?
A Yes, I am.
Q Are you familiar with the previous practices of this School
Board in providing transportation of students on a segregat
ed basis?
A No, I ’m really not familiar with it. I imagine it was done but
this was some years ago and I ’m not that familiar with it
now.
Q Do you know whether the School Board has provided trans
portation, this School Board, for Negro students going to
Negro schools and white students going to white schools?
A No, I do not. I have never been on a school bus myself. I
lived near the school I attended and I do not know.
81
Q You do know we have had segregated schools in this system.
A Yes, I do.
Q And you do know that transportation was provided during
the period that wre had segregated schools.
A I suppose outside of the city it was. Of my own knowledge,
though, I do not know.
Q I show you a copy of the exhibit that was attached to the
supplemental complaint filed by the plaintiffs in this case
w’hich shows the bill with the date May 7. Does that refresh
your recollection as to the date of the bill?
A No. I would assume May 7th is correct because it’s stamped
on the bill but I do not recall of my own personal knowledge.
Q You don’t have any reason to believe that it wasn’t May 7.
A No, I do not.
Q Now, do you know the number of students in Mecklenburg
County who are transported daily to school?
A No, I do not.
Q Do you know the number of pupils transported to school
daily across the State of North Carolina?
A No, I do not.
Q Do you know the average mileage traveled by buses each
day in transporting students to school in Mecklenburg
County?
A I have no idea what that would be.
Q Now, did you know the number of students or the average
miles per day traveled when you introduced this bill?
A The average number of students in Mecklenburg County?
Q Yes,
A No, I did not.
m
Q Or the average number in the State?
A No, I did not.
Q Or the average mileage?
A No, I did not.
Q Do you know the purpose of the State in providing trans
portation for students?
A I would assume that the purpose is to provide transportation
primarily for the rural children who live some distance from
school and who would find it difficult to arrange their own
transportation.
Q Do you know how long the State has been providing trans
portation at public expense?
A Ever since I can remember, which would be twenty-five or
so years. I’m sure it’s been longer than that, though.
Q The proposed amendment that you submitted June 16, 1969,
what was the purpose of this amendment?
MR. WAGGONER: Objection.
A This amendment, as best I recall, was aimed at providing
some type of temporary assignment whereby if a school
were damaged by fire or something else it would require a
temporary assignment and would require pupils to be trans
ported to another school district.
MR. WAGGONER: Move to strike.
Q Look at the first two pages of Exhibit 1. The first proposed
amendment would strike the balance of the sentence on
Page 1, Lines 14 and 15, following the word “ various” and
would add “ races, creeds, colors or national origins from
the community” .
A Yes, I’m looking at it.
Q Do you know the purpose of that amendment?
83
A As best I recall, this is a grammatical correction. I don’t
have House Bill 990 as it was approved by the House as
amended by the Senate, but I believe this did not change the
substance of the bill and was a grammatical correction.
Q Would you look at the second amendment on the same
page?
A Yes.
Q What was the purpose of that amendment?
MR. WAGGONER: Objection.
A I can only give you the purpose as I understand it. These
were put in by Senator Edwards of Guilford County and I
couldn’t testify as to what his purpose was. I can tell you
what I think the amendment does.
MR. WAGGONER: Objection, move to strike.
Q Would you tell us what you think the amendment does?
MR. WAGGONER: Objection.
A Yes. It appears to me and as I recall it, the amendment is to
cover the cases where you have a vocational school or a
school for handicapped children, something of that nature,
where you might have one in the entire community that
this particular class of children would be assigned to and I
believe that is why the Senator introduced this amendment.
MR. WAGGONER: Move to strike.
Q Now, you notice the last phrase in the amendment which
reads “ or for any other reason which the board of education
in its sole discretion deems sufficient” .
A Yes.
Q Would you tell us what you understand that provision to
mean?
M R . W A G G O N E R : O b jection .
84
A I understand it to mean just what it says. If the Board of
Education in its discretion feels a transfer or reassignment
is required that such would be allowed.
M R. WAGGONER: Move to strike.
Q And the statute would not apply in that instance?
A The statute would apply but it would not prohibit such
actions.
MR. WAGGONER: Move to strike.
Q Would you consider this an absolute discretion of the School
Board?
M R. WAGGONER: Objection.
A What I would consider it really, I think, is meaningless.
It ’s what it says it is. M y consideration of it would be a legal
conclusion that I don’t feel qualified to give.
Q Well, when you voted for the bill, what were your im
pressions at that time of the meaning of that provision?
M R. WAGGONER: Objection.
A M y impression at that time was that it says just what it says
right now, or for any other reason which the board of educa
tion in its sole discretion deems sufficient.
MR. WAGGONER: Move to strike.
Q Would this permit a Board in desegregating the schools to
make assignments that considered race and to transport
pupils in order to desegregate schools?
MR. WAGGONER: Objection.
A Would you read that question back, please?
(The Court Reporter reads the question on Page 10, Line
23.)
M R . W A G G O N E R : O b jection .
85
A I do not feel qualified to state a conclusion of law as to what
this would or would not permit any Board of Education to
do. This is a matter for the State or Federal Courts to deter
mine and not for me to say.
Q We’re trying to get something about the legislative history
of the bill and we were interested in your impressions at
that time what the meaning of the provision was. I under
stand that when the bill came back to the House you spoke
in favor of the bill including the amendments. Would you
give us your opinion, as you understood it at that time,
whether this provision would permit a Board to desegregate
the schools and to consider race in doing so?
MR. WAGGONER: Objection.
A In my opinion, and it’s only my opinion, when the bill came
back before the House it was not debated as to the amend
ments; that as the introducer of the bill I had one of two
courses available. I could either move that we concur in the
Senate amendment, in which event the bill would become
ratified, or move that we do not concur in the Senate amend
ment, in which case a conference committee would be set
up and the bill sent to the conference committee. I did move
that the House concur in the Senate amendments. As best I
recall, there was no debate on that motion and it passed
unanimously. The opinion I had at the time that the bill
came back to the Senate, the Board of Education would be
allowed a great deal of latitude in assigning or reassigning
students and giving them the sole discretion as to what
would or would not be sufficient. It would appear to me
there would be numerous instances where if the Board felt
that such reassignment were required it would be allowed to
do so.
MR. WAGGONER: Move to strike.
Q Would you look again at Plaintiff’s Exhibit 2. The first news
article there attempts to give the purpose of the bill, to pre
serve the neighborhood school concept, and it says also,
86
“ Carson introduced the bill several weeks ago in the wake
of a federal court ruling that ordered more integration of
Charlotte-Mecklenburg schools.” Would that be a correct
statement?
MR. WAGGONER: Objection.
A I am not prepared to state whether or not a newspaper
article from some paper not identified by some reporter that
I do not know is correct or incorrect. I have testified as to
the date that the bill was introduced. I said I had no reason
to believe it was other than May 7th. I do not recall the date
of any particular court ruling in Mecklenburg County and
I think that the record will have to be considered to see
whether it was before or after. As to the term “ the wake of” ,
I think that’s meaningless. I think following or prior to
would be a more accurate description.
Q The next paragraph reads: “ At that time it was feared that
students would have to be bused out of their districts to
obey the court order.” Would that be a correct statement of
your consideration at the time that you introduced the bill?
MR. WAGGONER: Objection.
A M y consideration as to what was “ it was feared” would be
nothing. I don’t even know particularly what “ it” means.
Certainly the possibility of busing was foremost in my mind
but as to whether or not this particular article is correct,
I have no way of knowing.
MR. WAGGONER: Move to strike.
Q Was not this possibility suggested in the April 23 order of
the Court in this case?
A I believe the possibility has been suggested on numerous
occasions both before and after April or May and I think it
had been coming or the possibility had been forthcoming
for a long time, I ’d say probably— I don’t know— a year or
so or more.
Q You do know there was quite some concern at that time in
87
Mecklenburg County about the order of the Court, the
April 23 order.
A There has been a great deal of concern in Mecklenburg
County throughout the matter both before and after April
of ’69.
Q And was it not foremost in your mind at the time you in
troduced the bill?
MR. WAGGONER: Objection.
A The concern of the people of Mecklenburg County and the
State of North Carolina has always been foremost in my
mind in introducing any bill.
AIR. WAGGONER: Alotion to strike.
Q Would you turn to the second page of Plaintiff’s Exhibit 2.
By the way, the first page is an article from the Charlotte
News. The second page is an article from the Charlotte
Observer.
A Yes, I'm referring to it now.
Q Is that a correct report of the House consideration on the
date indicated?
MR. WAGGONER: Objection.
A I have no way of knowing to my personal knowledge wheth
er it’s a correct report of the House consideration or not.
Q Would you turn to the third page?
A Yes, I ’m referring to the third page.
Q That is an article from the Charlotte Observer dated June
18, 1969. Would you look at that article?
A Yes, I ’m referring to it.
Q Would you look at the last column on that page?
AIR. WAGGONER: Let me get through the thing.
MR. CHAMBERS: OK.
88
A Yes, I have read the final column.
Q Are the quotations there correct?
A Which particular quotations are you referring to?
Q The first quotation is, “Carson replied that Charlotte-
Mecklenburg’s board was “very interested” in the bill and
that he thought “others” would be.”
A Yes, I’m confident that the Charlotte-Mecklenburg Board
would be very interested in the bill and others would be, too.
Q Did you make the statement?
A I don’t recall.
Q Would the second quotation there coming from Representa
tive Fred Mills be correct?
MR. WAGGONER: Objection, hearsay.
A I don’t recall.
Q Look down, the report shows a question asked you by Rep.
Arthur H. Jones of Mecklenburg regarding any possible con
flict between the bill and the decision of the Court should
that become law. WTould the quotation there coming from
you be correct?
A Not completely, no. There could be a conflict or there could
not be, depending on what the Local Board decided to do.
Q Do you recall whether you said: “Well, of course, I see a
a conflict. If there were no conflict I don’t think there would
be any need for the bill.”
MR. WAGGONER: Objection.
A I don’t recall whether I said it or not. I don’t deny it, I just
don’t recall it.
Q You might have said it?
A Yes.
Q You said that there might be . . .
89
Q There might not be a conflict depending on what the Board
decided to do.
A Yes.
M R . W A G G O N E R : O b jection .
MR. WAGGONER: Objection.
Q Will you explain that?
A I’ll explain it as I think I do now because I don’t have a
recollection of what I thought at this particular moment. I
think there would be a conflict if the Board were to decide
to involuntarily bus students for the sole purpose of achiev
ing a racial balance.
Q Even with the provision in the act that the Board could do
anything within its discretion?
MR. WAGGONER: Objection.
A This again calls for a conclusion of law. I don’t necessarily
think there would be a conflict. There may be one. If the
Board took the position that education in Mecklenburg
County would suffer and the public school system would
suffer but they still wanted to provide transportation for
the sole purpose of achieving a racial balance, I don’t think
the Board would be allowed to do this.
MR. WAGGONER: Motion to strike.
Q Mr. Carson, would you tell us in your opinion your differ
ence between achieving a racial balance and desegregating
the schools?
MR. WAGGONER: Objection.
A I think achieving a racial balance would be much easier of
the two to define. I think a racial balance in Mecklenburg
County would be roughly 70-30 in each school within the
county. As far as ending desegregation goes, this, of course,
is a most difficult question that I am not competent to
90
answer and I don’t know of anyone who is. The Court de
cisions have been, to me at least, very ambiguous as to what
must be done to end segregation. Whether or not it means
assigning all pupils without regard to race, creed, color or
national origin or whether it goes further to mean that
race, creed, color and national origin must be considered to
achieve a mixture of race as far as practical, I just would
not feel competent to answer that question.
MR. WAGGONER: Motion to strike.
Q Would you look at the next page, which is an article from
the Charlotte Observer dated June 26, 1969.
A Yes, I am referring to that now.
Q Do you recall seeing this article in the paper?
A No, I don’t recall seeing this article in the paper.
Q Were you in court in the hearing of this case in August of
1969 when the Court considered the Board’s plan that was
subsequently approved for the 1969-70 school year?
A I don’t recall. I have been at the hearings on two or three
occasions for relatively short period of time.
Q Are you familiar with the Board’s plan for 1969-70 that pro
vides for reassignment of Negro students from the inner-city
schools to white schools?
A You mean the closing of the six or seven schools?
Q Yes.
A Yes, I am vaguely familiar with it. I have not read it myself
but I have followed it in the newspapers and through the
other media.
Q Are you familiar with the provision of the plan that pro
vided for reassignment of Negro students from overcrowded
Negro schools in the inner-city?
A I know that some schools had been closed in the inner-city.
,91
I did not know some were overcrowded and portions of the
pupils from the overcrowded schools were transferred out,
no.
Q Are you familiar with the provision of the plan that pro
vided transportation for the Negro students to attend the
white schools?
A Yes.
Q Do you recall comments by counsel for the School Board at
that time about the provision of the statute that authorized
the Board to make a reassignment in its discretion?
M R. WAGGONER: Objection.
A I don’t recall the comment.
Q Did you consider the reassignment of the Negro students for
1969 and the transportation being provided for them a vio
lation of the bill?
MR. WAGGONER: I object. The witness stated he
really hasn’t read the plan and doesn’t know what
it did.
A No, I do not think it would be a violation of the bill. I think
the overcrowded portions of it would be certainly within
the discretion of the School Board and would be specifically
covered by the act. As for the other part, as far as I know
the reassignment and transportation was on a voluntary
basis and the School Board allowed children who did not
wish to be transported to the outer portions of the city to be
reassigned to the school closest to their home. And certainly
providing transportation for the pupils in the inner-city who
wanted to be transported outside would not be prohibited by
the bill.
Q That’s the voluntary nature of the bill?
A Yes.
Q Now, the Bill prohibits involuntary transportation. Would
you define or tell us what you meant by involuntary?
92
A Yes. The involuntary would refer to the pupils and to their
parents or guardians.
Q They would be the ones who would make the decision?
A Yes, as to whether or not they wanted to attend a school
near their home or whether they wanted to be transported
to another locality.
MR. WAGGONER: Motion to strike.
Q Would that present some conflict with the other provision
of the bill that permitted the Board to assign students with
in its discretion?
A No, I don’t think that would present any conflict.
Q If the Board decided to assign students and the students
objected, would such assignments be in violation of the act?
MR. WAGGONER: Objection.
A That would depend on a great many circumstances and also
would require a conclusion of law from me. I would have to
say that under certain circumstances it might and under
others it might not.
Q Would you define some of those circumstances that it might?
MR. WAGGONER: Objection.
A That it might be a possible conflict?
Q Yes.
A Yes. As I said, if the School Board decided that they were
going to transport pupils merely to achieve a racial balance
and that education of any of the students would not be im
proved but that the School Board felt they had to have such
a balance anyway, I think that this would be a conflict.
MR. WAGGONER: Motion to strike.
Q Will you define some of the exceptions where it would not
be a conflict?
M R . W A G G O N E R : O b jection .
93
A Yes. I think if you had a school that was overcrowded or if
you had a school that were damaged by fire and the Board
felt that the pupils should be assigned to another school,
either on a temporary or more than a temporary basis in
the case of overcrowding, I think it clearly would not be,
whether or not the pupils wanted to go.
M R. WAGGONER: Motion to strike.
Q Suppose you had a segregated school and the Board had to
reassign in order to desegregate the school?
M R. WAGGONER: Objection.
A Well, this gets into another difficult question. When you say
the Board had to reassign to desegregate, if the constitution
requires such an assignment, of course not. If the constitu
tion does not require such an assignment, yes, it would.
M R. WAGGONER: Motion to strike.
Q We discussed this bill previously, looking forward to secur
ing an affidavit from you and you made a statement at that
time that you considered the altering of school boundaries
and the pairing of schools for the sole purpose of creating
a racial balance to be in violation of the act, but the altering
of school districts, the pairing of schools and other methods
designed to eliminate the effects of past racial discrimina
tion would not necessarily be.
MR. WAGGONER: Objection.
A Yes, that’s correct.
M R. WAGGONER: Motion to strike. May I have
a copy of the affidavit?
M R. CHAMBERS: It’s not an affidavit.
M R. WAGGONER: Well, it’s a document.
MR. CHAMBERS: You may.
M R . W A G G O N E R ; O b jection .
94
Q You also stated at that time that you considered the determ
ination of involuntary to be that of the school children and
their parents.
A Yes.
AIR. WAGGONER: Objection.
Q You also stated at that time that the bill was amended in
the Senate to vest the discretion in the Local Board to make
alterations in the method of assigning pupils discretionary?
AIR. WAGGONER: Objection.
A Yes.
AIR. WAGGONER: Alotion to strike.
A Within limits.
Q What limits?
AIR. WAGGONER: Objection.
A Well, the ones that we have just mentioned.
Q You also made a statement at that time that you did not
consider the discretion vested in the Board to be absolute
but that some reason must be given, such as a finding that
racial balance in the school would promote the educational
program or that the constitution requires racial balance in
the schools.
AIR. WAGGONER: Objection.
A Yes.
Q Is that correct?
A Yes.
AIR. WAGGONER: Alotion to strike.
Q You made a statement at that time that you did not think
that the act would cover the situation where a school was
converted from certain grade levels to other grade levels and
students residing near the school would be required to be
95
transported to other schools serving their grade levels except
where the distance involved would be extensive and/or
there would be other schools in between the schools to which
the students were being transported.
M R. WAGGONER: Objection.
A Yes, that’s correct. I don’t think this particular act applies
to that.
MR. WAGGONER: Motion to strike.
Q You also made a statement that in your opinion the act
would limit the kinds of plan or approaches that a School
Board might follow in seeking to create a racial balance.
MR. WAGGONER: Objection.
A Yes, that’s right.
AIR. WAGGONER: Motion to strike.
Q You stated that in your opinion a requirement that there be
a racial balance of students in each school in the system
which also requires transportation would be violative of the
act.
M R. WAGGONER: Objection.
A Would you read that question back, please?
(The Court Reporters reads the question on Line 7 above.)
A Yes, that’s correct.
Q You stated that in your opinion the pairing of schools or
redrawing of attendance lines to achieve a racial balance
whether or not transportation of students is required would
be a violation of the act.
MR. WAGGONER: Objection.
A Yes, to achieve a racial balance.
M R. WAGGONER: Motion to strike.
96
A But not to create a unitary school system.
Q To create a unitary school system, then, even though trans
portation is provided, would not be a violation of the act?
M R. WAGGONER: Objection.
A Not necessarily, no.
M R. WAGGONER: Motion to strike.
Q The April 23 order of the Court authorized the School Board
to consider many means for desegregation including trans
portation. In your opinion would this bill limit the kinds of
considerations that a Board might employ to desegregate
schools?
MR. WAGGONER: Objection on incompetence and
to the forum.
A Not necessarily. Certainly some types of transportation
would not be affected at all by the bill. For example, if the
Board decided all inner-city students should be given an
option of attending the perimeter schools if they desired and
provided transportation for them, it certainly would not.
M R. WAGGONER: Motion to strike.
Q Would there be some limitations placed, however, on the
methods that a Board might utilize in desegregating schools?
MR. WAGGONER: Objection.
A There would be some limits placed on it, yes.
M R. WAGGONER: Motion to strike.
Q Would you tell us what those limitations would be or some
of them might be?
A Yes. An obvious limitation would be the transportation of
students across town for the sole purpose of achieving a
racial balance.
Q Are you familiar with the plan that was directed by the
Court on February 5, 1970?
97
A Vaguely familiar with it, yes.
Q Would the bill prevent implementation of that plan?
MR. WAGGONER: Objection.
A I would want to know specifically what in the plan you
would be talking about before I could answer that.
Q Would it prevent the clustering of schools and the trans
portation of pupils as the Court directed?
MR. WAGGONER: Objection.
A If it were for the sole purpose of achieving a racial balance,
Yes, I think it would.
MR. WAGGONER: Motion to strike.
Q W ell, as you presently understand the plan, you’re familiar
with the clustering of schools directed by the Court, are
you not?
A Yes.
Q And the pairing and the transportation provisions also.
A Yes.
Q In your opinion does this bill prohibit the Board from im
plementing that plan?
MR. WAGGONER: Objection.
A AYs. In my opinion . . . well, the entire plan, yes, I do think
it would prohibit it, certain portions of it.
MR. WAGGONER: Motion to strike.
Q Would those portions be the clustering of schools and the
transportation of the pupils in the thirty-four schools in
volved?
M R. WAGGONER: Objection.
A Just so I know exactly what you’re talking about, tell me
what you mean by clustering of schools as opposed to pair
ing.
98
A I guess we’re talking about the same thing in clustering and
pairing. You’re familiar that the order requires that thirty-
four schools be paired, ten black and twenty-four white.
A Yes.
Q And provides that transportation be provided for students
reassigned for the purpose of desegregating those schools.
A Yes.
Q Now, would the bill prohibit implementation of that order?
MR. WAGGONER: Objection.
A Yes, in my opinion it would to the extent that the order
is written.
Q Now, the April 23 order includes the following: “ Neighbor
hood” in Charlotte tends to be a group of homes generally
similar in race and income. Location of schools in Charlotte
has followed the local pattern of residential development,
including its de facto patterns of segregation. With a few
significant exceptions, such as Olympic High School (about
1/3 black) and Randolph Road Junior High School (233
black), the schools which have been built recently have
been black or almost completely black, or white or almost
completely white, and this probability was apparent and
predictable when the schools were built. Specific instances
include Albemarle Road Elementary (99 + white); Beverly
Woods (100% white); Bruns Avenue (99% + black); Hid
den Valley (100% white) ; Olde Providence (98% white);
Westerly Hills (100% white); Albemarle Road Junior High
(93% white).” Then the Court writes on about the distance
people drive to work and to church and to football games
and other affairs. Now, to desegregate these recently built
schools would the act prohibit the Board from making as
signments, assigning blacks to all white schools and whites
to all black schools and providing transportation?
MR. WAGGONER: Objection.
99
A Now, specifically your question is whether or not, without
considering all the figures you read out of which I have no
personal knowledge but I assume to be correct, the Board
would be prohibited from assigning children to achieve a
racial balance, is that correct?
Q Well, if the schools were all white and the Board wanted to
desegregate those schools by assigning some black kids to
those schools and providing transportation, would the act
prohibit the Board from doing this?
MR. WAGGONER: Objection.
A I would find that very difficult to answer. If you had a par
ticular situation where, for instance, a particular school dis
trict were gerrymandered to include all the pupils of a cer
tain race or to exclude pupils of a certain race, I would say
clearly no, they could be redrawn and should be redrawn.
But on the other hand, if you’re going to transport pupils
from one section of town to a distant section of town and
at the same time have cross transportation for the sole pur
pose of achieving a racial balance, then I would say yes,
that it would.
MR. WAGGONER: Motion to strike.
MR. CHAMBERS: I have nothing further.
BY MR. WAGGONER:
Q Mr. Carson, there were other sponsors of this bill with you,
is this correct?
A That’s correct.
Q Who were they?
A Rep. Johnson of Cabarrus County and Rep. Hegge of David
son County.
Q You’re not familiar with their intent insofar as the proposed
bill is concerned, are you?
A Well, their intent, I would say, would be the same as mine
100
and the same as the other members of the General Assembly
who gave it overwhelming approval.
Q How many members are there of the General Assembly?
A 170, 120 in the House and 50 in the Senate.
Q Are these gentlemen in a position to pass on the coverage of
this bill with respect to the specific facts in Mecklenburg
County?
A No. I would say very few would be very familiar with Meck
lenburg County. They’re from, of course, all across the State.
Q Do you know who proposed the amendments to the bill that
you originally proposed?
A The Senate amendments?
Q Yes.
A Yes, I do. Senator Edwards of Guilford County.
Q Do you know his intent?
A Well, I think he thought it would make it a more workable
and better bill if it were amended. One or two of the pro
visions were grammatical in nature.
M R. WAGGONER: I have nothing further.
MR. CHAMBERS: Thank you very much.
************
CERTIFICATE
I, Evelyn S. Berger, Notary Public/Reporter, do hereby
certify that James H. Carson, Jr., was duly sworn by me prior
to the taking of the foregoing deposition; that said deposition
was taken and transcribed by me; and that the foregoing 30
pages constitute a true, complete and accurate transcript of
the testimony of the said witness. I further certify that the
persons were present as stated in the caption.
I further certify that I am not of counsel for, or in the em
101
ployment of any of the parties to this action, nor am I interest
ed in the results of this action.
In witness whereof, I have hereunto subscribed my name this
12th day of March, 1970.
Evelyn S. Berger
Notary Public in and for
County of Mecklenburg-
State of North Carolina
GENERAL ASSEMBLY
AM ENDM ENT
D ate_________________ By: --------------------------
COMMITTEE SUBSTITUTE OF
Amend S. B . _____________H. B. 990
Adopted June 24
(1) Page 1, Lines 14 and 15
by striking the balance of the sentence after the word
“ various” and re-writing it as follows: “ races, creeds, colors
or national origins from the community.”
(2) Page 1, Line 18
by changing the period after the word “ districts” to a
semicolon, and adding the following: “ provided, however,
that the board of education of an administrative unit may
assign any pupil to a school outside of such attendance
district or zone in order that such pupil may attend a
school of a specialized kind including but not limited to a
vocational school or school operated for, or operating pro
grams for, pupils mentally or physically handicapped, or
for any other reason which the board of education in its
102
sole discretion deems sufficient.
(3) Page 2, Line 8
by striking the words “ not to any” and inserting in lieu
thereof the following: “ nor to any assignment or”
(4) Page 2, Line 10
between the word “ require” and “ reassignment” insert
the words “ assignment or”
(5) Page 2, Line 13
by removing the period and quotation marks after the
word “ pupil” and adding the following: “ or to any assign
ment made pursuant to a choice made by any pupil who is
eligible to make such choice pursuant to the provisions of
a freedom of choice plan voluntarily adopted by the board
of education of an administrative unit.”
Signed EDWARDS
SESSION 1969
Introduced by:
Representatives Carson, J. Johnson, and Hege
COMMITTEE SUBSTITUTE TO H. B. 990
Referred to:
A BILL TO BE ENTITLED
AN ACT TO PROTECT THE NEIGHBORHOOD SCHOOL
SYSTEM AND TO PROHIBIT THE INVOLUNTARY
BUSSING OF PUPILS OUTSIDE THE DISTRICT IN
WHICH THEY RESIDE.
The General Assembly of North Carolina do enact:
Section 1. T here is h ereby created a new Section o f C hapter
103
115 of the General Statutes to be codified as G.S. 115-176.1 and
to read as follows:
“ G.S. 115-176.1. Assignment of pupils based on race, creed,
color or national origin prohibited. No person shall be refused
admission into or be excluded from any public school in this
State on account of race, creed, color or national origin. No
school attendance district or zone shall be drawn for the pur
pose of segregating persons of various race, creed, color or
national origin from the community.
Where administrative units have divided the geographic area
into attendance districts or zones, pupils shall be assigned to
schools within such attendance districts. No student shall be
assigned or compelled to attend any school on account of race,
creed, color or national origin, or for the purpose of creating a
balance or ratio of race, religion or national origins. Involuntary
bussing of students in contravention of this x\rti.cle is prohibit
ed, and public funds shall not be used for any such bussing.
The provisions of this Article shall not apply to a temporary
assignment due to the unsuitability of a school for its intended
purpose nor to any transfer necessitated by overcrowded con
ditions or other circumstances which, in the sole discretion of
the School Board, require reassignment.
The provisions of this Article shall not apply to an applica
tion for the assignment or re-assignment by the parent, guar
dian or person standing in loco parentis of any pupil.”
Sec. 2. All laws and clauses of laws in conflict with this Act
are hereby repealed.
Sec. 3. If part of the Act is held to be in violation of the Con
stitution of the United States of North Carolina, such part shall
be severed and the remainder shall remain in full force and
effect.
Sec. 4. This Act shall be in full force and effect upon its
ratification.
104
GENERAL ASSEMBLY
AM ENDM ENT
Date 16 June ’69 By: Carson
Amend S. B. _____________H. B. 990
By adding a new paragraph on page two; line 14, following
the word “ Article” to read as follows:
The provision of this Article shall not apply to a temporary
assignment of pupils. A temporary assignment shall be one for
less than the school year resulting from conditions which temp
orarily render a school unacceptable.
House adopted 6/16/69
Signed JAMES H. CARSON, JR.
NORTH CAROLINA
GENERAL ASSEMBLY
1969 SESSION
HOUSE BILL DRH 255
Sponsors:
Representative Carson, J. Johnson, Hege
Referred to:
A BILL TO BE ENTITLED
AN ACT TO PROTECT THE NEIGHBORHOOD SCHOOL
SYSTEM AND TO PROHIBIT THE INVOLUNTARY
BUSSING OF PUPILS OUTSIDE THE DISTRICT IN
WHICH THEY RESIDE.
The General Assembly of North Carolina do enact:
Section 1. T here is hereby created a new Section o f C hapter
105
115 of the General Statutes to be codified as G.S. 115-183.1
and to read as follows:
“ G.S. 115-183.1. Pupil assignment within neighborhood; in
voluntary bussing prohibited. Notwithstanding any provisions
of this or other Chapters, no pupil shall be assigned to a school
outside the district in which he resides except upon the applica
tion of his parent, guardian, or person standing in loco parentis
as hereinbefore provided.
Pupils residing within a district where two or more schools
are located shall be assigned to the school which is closest to
their place of residence unless application to attend elsewhere
is made by the parent, guardian, or person standing in loco
parentis. Applications for assignments outside the pupils’ school
district or to a school further from the pupils’ residence than
another school within the district shall be determined by the
city or county board as hereinbefore set forth.
The city or county board may, in its discretion and subject
to provisions as hereinbefore set forth, provide transportation
for pupils assigned either within or without the district. Provid
ed, however, students shall not be bussed or transported outside
their respective districts or to a school more distant from their
residences than another school within the district except in
cases where the parent, guardian, or person standing in loco
parentis has requested such assignment as hereinbefore set
forth. Public funds, whether from taxation or any other source,
shall not be used to provide transportation for pupils assigned
in contravention of this Article.”
Sec. 2. All laws and clauses of laws in conflict with this Act
are hereby repealed.
Sec. 3. If part of the Act is held to be in violation of the
Constitution of the United States or North Carolina, such part
shall be severed and the remainder shall remain in full force
and effect.
Sec. 4. This Act shall be in full force and effect upon its rati
fication.
106
HOUSE GETS BUSING BILL
RALEIGH—Rep. James H. Carson’s bill to prohibit arbi
trary busing of students to create racial balances in schools
comes up for floor action today in the House.
The bill has been given a favorable report by the House
Judiciary Committee.
Carson’s bill seeks to preserve “ neighborhood school” concept
which means students will be assigned to schools nearest their
homes.
Carson introduced the bill several weeks ago in the wake of
a federal court ruling that ordered more integration of Char-
lotte-Mecklenburg schools.
At that time it was feared that students would have to be
bused out of their districts to obey the court order.
Carson’s bill prohibits the involuntary busing of students
outside their school districts. But it does not prohibit busing
students if they desire it.
ANTI-BUSING BILL GETS HOUSE OK
By JERRY ADAMS
Observer Raleigh Bureau
RALEIGH— Mecklenburg Rep. James H. Carson’s bill that
would prevent the busing of school children without parental
consent passed its second reading in the N.C. House Monday
night.
Rep. Henry E. Frye of Guilford County requested that the
bill’s final reading be delayed until today. Only one member
need request that a bill not receive its second and third reading
the same day.
The bill provides that a child must be assigned to the school
107
nearest his home unless parents consent to his assignment to
another school.
Before explaining his bill, Carson added an amendment that
would allow busing of a child “ under temporary conditions” for
less than a school year if, for instance, the originally assigned
school burned down.
Carson has explained that the constitutionality of busing has
never been tested in the courts, although the idea has been an
emotional issue for years and has been suggested by the courts
as one means of fostering desegregation.
The New York legislature has passed a similar law.
Frye, the only objector during brief debate over the bill, con
tended that the bill “ doesn’t give any discretion at all to the
(local) board.”
Frye suggested that if the Assembly wanted to express its
wishes to local boards of education it would be better advised to
pass a resolution— without the force of law. Frye also said that
some districts in the state were not rigidly defined and that
confusion could result from such a law.
‘NO BUSING’ BILL ROUSES CRITICS
By JERRY ADAMS
Observer Raleigh Bureau
RALEIGH— Opposition erupted in the House Tuesday to
Mecklenburg Rep. James II. Carson’s bill to prohibit involun
tary busing of public school children.
The bill was detered from final passage and will be reconsid
ered today.
Opposition came from several quarters on the floor of the
108
House Tuesday although the bill was passed in its second read
ing Monday night after only Rep. Henry E. Frye of Guilford
opposed it. Frye delayed the final vote until Tuesday when it
looked Monday night as though the bill was headed for over
whelming approval by voice vote.
“ Some people (the opposers) have had a chance to look at
it,” Frye said after Tuesday’s session, during which he did not
speak. “ Things were going so well I thought I ’d just stay out of
it,” he said.
The bill would prevent a school board from busing a child
without his parents’ approval to a school other than that near
est his home.
Busing is a crucial issue in school desegregation, although
Carson argues that busing has never received a specific court
test. Frye is the General Assembly’s only Negro member.
Speaking of another local issue in desegregation, Carson said
on the floor Tuesday that his bill “ has nothing to do with the
freedom-of-choice plan one way or another.”
But Rep. Neill I. McFadyen of Hoke said the bill would be
impossible to apply in areas where school attendance districts
were not precisely drawn.
Saying that he had been chairman of his local school board,
McFadyen continued:
“ If we tell the boards at home exactly what to do, I don’t see
why we need these local boards.”
Local boards “ should have some right to have some freedom
of choice,” too, McFadyen said.
Rep. Ernest B. Messer of Haywood objected that “ shift
ing population” in a city or county would require that local
boards be able to use their own discretion about transferring
pupils.
Carson hastily offered an amendment that would suspend
109
the law in a case where a school building were damaged or
where overcrowding required “ temporary” busing.
But Messer was still not satisfied.
“ I think it is wrong and I think it will create some stumbling
blocks throughout this state that we won’t realize until we
come up against them,” Messer said.
Rep. Ike F. Andrews of Chatham asked if local boards “had
requested for even approved this bill?”
Carson replied that Charlotte-Mecklenburg’s board was
“ very interested” in the bill and that he thought “ others”
would be.
Rep. Fred M. Mills Jr. of Anson asked, “Mr. Carson, really
don’t you want this to apply to just Mecklenburg County?”
Mecklenburg’s board is currently locked in a fight with the
federal district court, which has offered busing as one solution
to a de facto segregated situation that the court says must be
resolved.
Mills also raised the question of a parent who might not
“ even admit” his child needed special education classes for
which busing might be necessary.
And Rep. Arthur M. Jones of Mecklenburg asked Carson
if he could “ see any possible conflict with the bill— should it
become law— and the current situation with the courts in
Charlotte-Mecklenburg ? ”
Carson responded, “ Well, of course, I see a conflict.
“ If there were no conflict I don’t think there would be any
need for the bill.”
Carson said the state attorney general’s office had told him
the bill was constitutional, “ but could be applied unconsti
tutionally.”
When Carson’s attempts at amending the bill showed no
110
signs of mollifying critics, he asked that the bill be reconsidered
today.
After the session, obviously delighted with his new-found
support in opposition to the bill, Frye said that the bill runs
counter to the “ trend” of this General Assembly in giving more
power to local government.
CARSON’S REW RITTEN ANTIBUSING
BILL PASSES IN HOUSE VOICE VOTE
Observer Raleigh Bureau
RALEIGH— Mecklenburg Rep. James H. Carson’s bill to
prohibit busing of school children without parental consent won
final approval in the House of Representatives Wednesday and
now moves to the Senate.
The bill, which locks legal horns wtih a desegregation case in
Charlotte-Mecklenburg, was passed in a form substantially re
written from the original.
Rep. Henry E. Frye of Guilford, the General Assembly’s only
Negro and the member who first opposed the bill, was not
present for the vote Wednesday.
Other House members who had questioned whether the bill
restricted local school boards too much, also were silent, and
the bill passed by an overwhelming voice vote.
The bill prohibits busing of children across attendance-
district lines to establish racial “ balances or ratios” in any
school. The bill also prohibits the use of busing to segregate
by race.
Drawn along the lines of a recently passed New York law,
the bill conforms to guidelines established by the U.S. Depart
ment of Health, Education and Welfare, Carson said.
I l l
“ In my opinion, the bill probably is constitutional, but it
may not be,” Carson said.
Federal Judge James B. MacMillan has suggested busing as
a means of further desegregating Charlotte-Mecklenburg
schools. The schools now are under court order to come up
with a plan that will further desegregate, but are in the process
of fighting that order in the courts.
Carson cited a Jaycee poll from Charlotte that showed 94.8
per cent of 1,033 persons answering to “ favor neighborhood
schools.”
Black people and white people want neighborhood schools,
Carson argued. He was the only one to speak on the bill.
“ I don’t know what the courts will do, but we can state that
the policy of this state is against segregation.
“ And it’s against involuntary busing of students.”
LAW FIRM PLANS TEST
OF ANTIBUSING LAW
By NANCY DRACHEY
Observer Staff Writer
A Charlotte law firm said Wednesday it will seek a consti
tutionality test of the new antibusing law.
The antibusing law, sponsored by Mecklenburg Rep. James
H. Carson, received final approval in the N.C. House Wednes
day, the last day of the General Assembly session.
The new law prohibits busing for purposes of integration or
segregation, requiring a school board to assign children to the
school closest to their homes.
112
Adam Stein, a partner of civil rights lawyer Julius I. Cham
bers, said their firm would ask the U.S. District Court here to
determine the new law’s constitutionality.
Normally, the constitutionality of state laws is argued be
fore a court of three federal judges.
Chambers and his firm have represented the Negro parents
and teachers who brought the Charlotte-Mecklenburg school
desegregation case before the federal court here.
The new law, titled “ To Protect The Neighborhood School
System,” would virtually assure some all-Negro and all-white
schools since neighborhoods are segregated.
School Board attorneys Brock Barkley and William J. Wag
goner have said the law would have to be obeyed unless it was
stricken down in federal court.
Barkley told board members he thought the law was un
constitutional and would be tossed out if tested in federal
court.
The antibusing law was approved in the Senate on Tuesday
after earlier approval in the House. The Senate tacked on a
technical amendment which the House approved Wednesday.
CIVIL RIGHTS LAWYERS
W ILL TEST BUSING LAW
By KAY REIM LER
News Staff Writer
Charlotte civil rights attorneys plan to take the newly passed
state law forbidding involuntary busing to court to try to have
it declared unconstitutional.
The law, sponsored by Mecklenburg Rep. James H. Carson
113
Jr., prohibits busing of children to school to promote segrega
tion or desegregation and requires the assignment of a child
to the school nearest his home.
J. LeVonne Chambers, the attorney who brought the de
segregation suit against the School Board, told The News today
that his office will test the law in the court.
CHAMBERS said he has “ no idea” when the case might
come up.
The case, he said, will be heard before a panel of three fed
eral judges, not necessarily from North Carolina, appointed by
the chief judge of the U.S. Fourth Circuit Court.
That court is in recess until September, the attorney said,
adding that he doesn’t know if the three-judge panel could be
appointed before September.
The law as it stands could have an effect on any desegrega
tion plan the Charlotte-Meeklenburg School Board might de
vise.
School attorneys agree that the board must abide by the law
until the measure is stricken down in court.
Chambers told The News that a number of similar state laws
were struck down by the courts during the late 1950’s and
early 1960’s because they obstructed the desegregation of
schools.
If all school children in the Charlotte-Meeklenburg system
attend the school closest to their homes, the system would
retain a number of racially identifiable schools since many
neighborhoods in the county are segregated.
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ANTI-BUSING LAW TARGET OF MOTION
By VIVIAN MONTS
News Staff Writer
Civil rights attorneys here today asked the federal court to
override a new state law prohibiting involuntary busing of
children outside their school districts.
A motion filed this morning by Adam Stein, law partner of
J. LeVonne Chambers requested an order by Judge James B.
McMillan which would prohibit the Charlotte-Mecklenburg
Board of Education from using the law.
The motion was filed in connection with a suit seeking total
integration of local schools. The court ruled last spring that
schools here must have more desegregation.
Judge McMillan has not yet ruled on the busing request, but
has granted an attached request by the attorneys asking that
the names of the N. C. State Board of Education and Dr. A.
Craig Phillips, state superintendent of public instruction, be
added to the list of defendants in the suit.
THE ORIGINAL defendant was the local school board.
School Board members were added later as individual defen
dants in the suit.
The state law the civil rights attorneys are seeking to over
turn provides that “ involuntary busing of students . . . is pro
hibited, and public funds shall not be used for any such bus
ing.”
The attorneys claim the law, passed July 2, forbids the local
school board from carrying out court orders to comply with
the school desegregation requirements of the Constitution.
The papers filed this morning state that “ this is so because
compulsory (pupil) assignments and involuntary busing . . .
are necessary devices” for complying with court orders for de
segregation of local schools.
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Judge McMillan has never required involuntary busing in
the local school system but stated in an order April 23 that
“ there is no reason except emotion . . . why school buses can
not be used by the board to provide the flexibility and economy
necessary to desegregate the schools.”
The temporary order asked by Stein would be in effect pend
ing a decision by a three-judge panel as to whether or not the
state law is constitutional. The civil rights attorneys claim it is
not.
The attorneys claim that if the local school board is not
immediately stopped from using the state law, its members will
fail to comply with Judge McMillan’s orders for the desegrega
tion of schools here.
The anti-busing law originated in Mecklenburg County. It
was introduced first in the House of Representatives by Meck
lenburg Republican Rep. James H. Carson Jr.
School administrators contacted by The News this morning
disagreed somewhat with Lt. Stroud’s statement on marijuana
sales in the schools.
“ I question buying on the junior high campus,” said Steven
D. Wallin, principal at Coulwood Junior High School. “ I
haven’t seen any here or on any other junior high campus.”
And Thelbert C. Wright, principal at West Mecklenburg
High School, said that “ If you can buy that stuff in the big
schools, we certainly don’t know anything about it.”
North Mecklenburg’s assistant principal, B. K. Hurd, re
acted to Stroud’s statement by saying that “ he (Stroud) knows
something we don’t know. I wouldn’t be surprised at their
being able to get it, but to my knowledge as to it being on our
school grounds and being sold, no.”
The News was able to contact only a few high school ad
ministrators because of the vacation period.
116
‘NO BUSING’ LAW IS CHALLENGED IN COURT
By NANCY BRACHEY
Observer Staff Writer
Civil rights lawyers Tuesday challenged the constitutionality
of the new N.C. law that prohibits involuntary busing of chil
dren for racial balance in the schools.
The law also prohibits assignment of school children outside
their attendance district to achieve a racial balance.
Its purpose, motive and effect;” said the law firm of civil
rights lawyer Julius L. Chambers, is to prevent school boards in
the state from complying with federal court orders for de
segregation in compliance with the U.S. Constitution.
The lawyers asked that the new law be sent to a three-judge
federal court for a constitutionality test. Pending that decision,
they asked U.S. District Judge James B. McMillan to grant an
injunction preventing consideration, application, administra
tion and enforcement of the new law.
Chambers’ firm filed the complaint in connection with the
Charlotte-Mecklenburg school desegregation case, which is be
fore McMillan.
The civil rights lawyers contended that “ involuntary busing
and pupil assignment” prohibited by the law are “ necessary
devices” to carry out existing court orders here and elsewhere
in N.C. and to comply with constitutional requirements.
They alleged that unless the court prevents it, the Charlotte-
Mecklenburg School Board will use the law to sidestep M c
Millan’s court orders of April 23 and June 2 for desegregation
of local schools.
The board has until Aug. 4 to present its second try at a
desegregation plan for schools and faculties. The first pupil de
segregation plan was rejected by the judge June 20.
(McMillan has not told the school board it must transport
117
students. He has said that the school board may use any means
to accomplish desegregation of Charlotte-Mecklenburg
schools.)
A number of other school districts in N. C. are also under
federal court orders to desegregate this fall and next.
Also Tuesday, the N. C. Board of Education and Dr. A.
Craig Phillips, state superintendent of public instruction, were
made defendants in the Charlotte-Mecklenbug school desegre
gation case.
This follows a ruling issued by U. S. District Judge Algernon
Butler of Raleigh that education officials have a duty in school
desegregation.
The State, however, has announced an objection to Butler’s
ruling, and says it will appeal any decision that makes the
State responsible for school desegregation.
Butler’s order said the State officers share with local units
the burden to actively seek the desegregation of the public
schools.
McMILLAN WILL IGNORE NEW ANTIBUSING LAW
By W ARREN KING
Observer Staff Writer
A recently enacted N.C. “ antibusing” law apparently has
little effect on the Charlotte-Mecklenburg School Board’s plan
to desegregate local schools.
Federal Judge James B. McMillan said Tuesday that a
temporary restraining order on the law, (which prohibits in
voluntary busing of school children), was not necessary in con
sidering the school board’s plan.
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Civil rights lawyer Julius L. Chambers asked for the order
during a three-hour U.S. District Court hearing Tuesday on
the school board’s new desegregation plan which included the
busing of black students to predominately white schools.
The statute, passed this summer by the General Assembly,
prohibits busing of a student against his will.
Mecklenburg School Supt. William Self testified he didn’t
believe the board was influenced by the law in drawing up the
desegregation plan.
The plan turns primarily on the concept of voluntary busing
and contains provisions for reassigning students who object to
being bused.
Self said he felt the busing was proposed for the same reason
seven black schools would be closed under the plan and their
students bused to the white schools: “ To afford better educa
tional opportunities (for Negro students) and prevent over
crowding (schools that would not be closed under the plan).”
Mecklenburg Rep. James H. Carson Jr., author of the anti
busing law, said in an interview the board was “ quite proper”
in ignoring the statute. It was not intended to interfere with
the board’s desegregation efforts, he said.
The law itself contains numerous exceptions that would al
low busing, including one nonspecific provision for pupils re
assignment because of “ other circumstances.”
In explaining the school board’s position in regard to the
law, attorney Maurice Weinstein said during the hearing that
the exceptions provided for in the statute “ swallow” it.
Weinstein said the state attorney general’s office had told
him it would seek to further clarify the law in the near future
and requested that no action be taken on it during Tuesday’s
hearing.